Employer Rights Go Up in Smoke: NYC Largely Bans Marijuana Testing of Prospective Employees

New York City recently amended its New York City Human Rights Law (NYCHRL) to ban drug testing applicants for marijuana, with exceptions for positions involving construction, police, commercial driving, supervision of children, and other occupations involving health and safety. Additionally, positions where testing is required by law or agreed to in a collective bargaining agreement are exempt from this law. Simply stated, employers still may test many prospective employees whose jobs entail heightened safety requirements or otherwise fall in the exceptions set forth in the new law, and employers still may test current employees. The law became effective on May 10, 2020.

New York City employers should carefully review their employment applications and other applicant materials to ensure that they are complying with this and other local laws. Notably, with limited exceptions, New York City already bans most employer inquiries into credit history and criminal history during the pre-employment process. Now, marijuana testing is yet another issue that most New York City employers can no longer address during the applicant screening process. Employers also still are permitted to administer marijuana tests to current employees, including random, for cause and post-accident testing, and may continue to test prospective and current employees for the presence of drugs other than marijuana and tetrahydrocannabinols (THC).

New York City employers who administer tests to prospective employees to detect the presence of marijuana or THC risk lawsuits alleging unlawful employment discrimination, including the possibility of penalties and punitive damages.

Employers May Test Prospective Workers for Positions with Heightened Safety Requirements

The amendment, which applies to public and private employers, exempts prospective construction employees from its mandate. The amendment makes specific reference to positions that require compliance with Section 3321 of the NYC Building Code (establishing Site Safety Training (SST) requirements) or Article 8 Section 220-h of New York Labor Law (referring to public construction work costing $250,000 or more for New York City). The scope of the exemption covers a large swath of prospective construction employees in New York City, and employers may continue to conduct pre-employment marijuana and THC tests of those applicants.

The new law also does not apply to prospective employees in the following positions or professions:

• police officers or peace officers, including but not limited to the police department, fire department, department of correction, department of investigation, department of probation, division of youth and family services, business integrity commission and district attorneys' offices
• positions requiring a commercial driver's license
• positions requiring the supervision or care of children, medical patients or "vulnerable persons" (as defined by New York City's social services law)
• positions with the potential to significantly impact the health or safety of employees or members of the public

Employers Still May Test Certain Prospective Workers Who Are Subject to Certain Regulations or Contract Provisions

The amendment permits testing for marijuana or THC where specific regulations or contracts require such testing to be done, such as the following:

• positions where testing is a required condition of a federal grant or contract
• positions where pre-employment marijuana testing has been specifically bargained for and agreed upon in a valid collective bargaining agreement
• positions where federal or state laws, regulations or orders require testing for purposes of safety and security

Conclusion and Considerations

Because the amendment was issued only recently and has caused confusion due to certain vaguely worded provisions, the New York City Commission on Human Rights is already contemplating amendments to clarify its meaning. In the interim, employers should refrain from pre-employment testing of prospective New York City employees for marijuana and THC without seeking legal advice. For questions about how this amendment applies to your organization, please contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group. Holland & Knight attorneys have extensive experience advising organizations on legal compliance and best practices in hiring.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.