By Kristen Wakulchuk

Posted

While 33 states have legalized medical marijuana and another 11 have legalized its recreational use, an outright ban on pre-employment testing has not been part of any of these laws. However, a law that took effect on May 10 in New York City has taken this significant step. 

Amending Section 8-107 of the city’s Administrative Code, this groundbreaking municipal legislation prohibits employers, labor organizations, employment agencies and their agents from requiring job candidates to submit to marijuana testing as a condition of employment. It does not currently apply to existing employees. The New York City bill was passed on May 10, 2019, giving employers a year to come into compliance. 

Exemptions to the NYC Law

Not every applicant for a job in New York is subject to the parameters of the city’s new marijuana law. Exceptions include: 

  • Law enforcement 
  • Laborer, mechanic, worker, or contractor on a public worksite that requires compliance under Section 3321 of the city’s Building Code 
  • Positions requiring a commercial driver’s license 
  • Positions requiring the supervision or care of children, medical patients, or vulnerable persons as defined by Section 488(15) of the city’s Social Services Law 
  • Positions that could impact the health or safety of employees or members of the public, as determined by the Department of Citywide Administrative Services or in regulations issued by the Commission on Human Rights 

Also excluded are hiring instances where drug testing is mandated by the New York City, New York State or U.S. Departments of Transportation, federal contracts or grants, federal or state statutes, or collective bargaining agreements. 

What It Means for Employers

The New York City law goes a significant step further than previous laws nationwide that have created certain protections for marijuana users with respect to employment. It can be expected that at least some states, as well as additional municipalities, will follow suit in limiting or banning pre-employment testing. 

  • There may also be pressure to consider banning testing at any stage of employment. 
  • Further liberalization of marijuana laws also may occur. The leading sponsor of the New York City law, Council Member Jumaane D. Williams, notes on his website that “(we) should rapidly move towards the full legalization of marijuana that has been massively successful in other states, expunge the criminal records of past users, and create a pathway for all New Yorkers to benefit economically from this industry.” 
  • If you have operations anywhere in New York City, consider how the new law will impact your testing policies. Given the narrow scope of exemptions, almost all city employers will have at least some positions for which it applies. Also, if you’re a covered employer, make sure your job advertisements, applications, policies, and procedures do not provide for across-the-board drug testing inconsistent with the new law. 
  • Carefully follow related developments in other states and cities. To be fully prepared for any future changes, now may be a good time to carefully evaluate your approach to marijuana and other drug rules and testing for both candidates and current employees. 

Need Assistance Keeping Up With Compliance?

Chane Solutions specializes in helping businesses create and maintain safe working environments while remaining compliant at every stage of their hiring and employment processes. We’re committed to being a trusted source for all your background screening and drug testing needs. Contact us today to learn more. 

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