New York City Passes Pre-Employment Marijuana Testing Law

Recently the City of New York (NYC) amended the Administrative Code of New York by adding a new section pertaining to pre-employment marijuana testing.  This new section will ban pre-employment marijuana screening by employers under certain circumstances.  Because New York City Mayor Bill de Blasio did not sign or veto the bill within the 30 day required time period, the bill became law on May 10^th 2019.

Beginning on the effective date of the new section of the law, which is May 10^th 2020, it will be considered an unlawful discriminatory practice for an employer, labor organization, or employment agency to require an applicant to submit to marijuana testing as a condition of employment.         

Note also that regulations are expected to be published which will provide additional compliance related details including but not limited to providing more exceptions to the applicability of the law as listed in Subsection (D) following and highlighted.

Specifically, the law states:

• 2. Section 8-107 of title 8 of the administrative code of the city of New York is amended by adding a new subdivision 31 to read as follows:

31. Employment; pre-employment drug testing policy. (a) Prohibition. Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.

(b) Exceptions. (1) The provisions of this subdivision shall not apply to persons applying

 to work:

(A) As police officers or peace officers, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or in a position with a law

enforcement or investigative function at the department of investigation.

(B) In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law;

(C) In any position requiring a commercial driver’s license;

(D) In any position requiring the supervision or care of children, medical patients or

vulnerable persons as defined in paragraph 15 of section 488 of the social services law; or (E) In any position with the potential to significantly impact the health or safety of

employees or members of the public, as determined by: (i) the commissioner of citywide

administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.

(2) The provisions of this subdivision shall not apply to drug testing required pursuant to:

(A) Any regulation promulgated by the federal department of transportation that requires

testing of a prospective employee in accordance with 49 CFR 40 or any rule promulgated by the departments of transportation of this state or city adopting such regulation for purposes of enforcing the requirements of that regulation with respect to intrastate commerce;

(B) Any contract entered into between the federal government and an employer or any

grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;

(C) Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or

(D) Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Link to the NYC Pre-Employment Marijuana Testing Law: The New York City Council – File #: Int 1445-2019

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The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly.