Striking a Balance: New York City Updates Pre-employment THC Testing Prohibition

On May 10, 2020, New York City’s ban on pre-employment marijuana testing took effect. New York City Council passed this law on April 9, 2019. The law prohibits employers from conducting pre-employment drug testing for marijuana except in very limited circumstances. This law is monumental as it was the first of its kind in the United States to be passed, followed shortly thereafter by Nevada with a similar, but less restrictive prohibition.[1] The New York City law specifies that companies in the city cannot conduct pre-employment tests for Tetrahydrocannabinol[2] (“THC”) metabolites or marijuana unless the job position is deemed safety sensitive.[3] The law, which went into effect in 2020, does not apply to applicants for certain types of occupations including when preempted by federal law.[4] Flushing out what exactly constitutes such a position has been subject to heated debate as well as concerns of abuse and arbitrary and capricious implementation by City administrators.[5]

The new law amends the New York City Human Rights Law[6] and provides that: “[e]xcept 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.”[7] The law does not apply to applicants for certain types of occupations. The law does not apply to drug testing required by the U.S. Department of Transportation (DOT) regulations, New York State or New York City Department of Transportation regulations, contracts between the federal government and employers, or grants of financial assistance from the federal government to employers. The law specifically states:

(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.[8]

It is subsection D of this law that has garnered the most attention among employers, which excepts from the prohibition employees “[i]n any position with the potential to significantly impact the health or safety of employees or members of the public. . .” as determined by the commission.[9] On June 16, 2020 the Commission on Human Rights voted to approve an amendment to its rules to elucidate this exception.[10] The exceptions from the ban on pre-employment tests now include positions that require an employee to work on a construction site, to operate heavy machinery, to work on or near power or gas utility lines, to operate a motor vehicle on most shifts, to work in certain fields related to aircraft, and to work in a position in which “impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.”[11] However, in no instance shall “a ‘significant impact on health and safety’ . . . include concerns that a positive test for [THC] or marijuana indicates a lack of trustworthiness or lack of moral character.” As a result, the Commission has published a list of titles for which pre-employment THC testing is permitted.[12] The publication lists no basis or reasoning for the choice in titles nor a description of the responsibilities that the job title performs that make it safety-sensitive.[13] Titles range from obviously safety-sensitive such as a “Bus Operator,” “Lifeguard” and “Train Operator” to those that require a greater leap of judgment such as “Dietitian” and “Fraud Investigator.”[14]

Time will reveal the many legal arguments this law can erupt. Employers may argue that this law intrudes on their general rights, and negatively impacts their ability to fulfill their duty ofto  ensuring that their workplaces remain safe and drug-free through policies, discipline, and other measures. With this law banning pre-employment THC testing, employers may argue that testing for THC is a necessary first step in prohibiting substance use and abuse in the workplace and that the law unjustly puts the resulting accident, injury and fatality liability directly upon them as a consequence. However, the law does not restrict  any employer’s ability to drug test current employees, to take disciplinary action against any employee for bringing drugs or alcohol into the workplace, or for coming to work under the influence of marijuana or THC. Many employees, on the other hand, will argue that this law marks the beginning of reducing the stigma around marijuana and is the start of a crucial legislative movement working to restore justice and opportunity for many people who have been adversely affected by the criminalization of marijuana.[15]

Regardless of opinion, every New York City employer with a drug-free workplace program should use this recently announced guidance to This new law forces many New York City employers to review and revise their drug testing policies, employment applications, and other pertinent documents.

[1] Nevada Assembly Bill 132 (2019) (leaving discretion to the employer to decide which positions are “safety sensitive” and thus permissibly require pre-employment marijuana drug tests). [2]  Tetrahydrocannabinols, or THC, is the main psychoactive component of marijuana. [3] N.Y.C. Admin. Code § 8-107(31). [4] Id. [5] See, e.g., New York City, “Written Testimony: Local Law 91” (https://www1.nyc.gov/assets/cchr/downloads/pdf/Written_Testimony_Local_Law_91.pdf last accessed Aug. 22, 2020). [6] The New York City Human Rights Law (Title 8 of the Administrative Code of the City of New York) prohibits discrimination in New York City, in employment, housing, and public accommodations. Protected classes in these areas are noted below. The New York City Human Rights Law also protects against discriminatory lending practices, retaliation, discriminatory harassment, and bias-based profiling by law enforcement. [7] N.Y.C. Admin. Code § 8-107(31). [8] N.Y.C. Admin. Code § 8-107(31)(b). [9] Id. [10] Commission on Human Rights, Notice of Adoption (https://www1.nyc.gov/assets/cchr/downloads/pdf/Rules_Marijuana_Final.pdf last accessed Aug. 22, 2020). [11] Id. [12] New York City Commission on Human Rights, Titles for which Pre-Employment Testing For Tetrahydrocannabinols and Marijuana is Permitted (https://www1.nyc.gov/assets/dcas/downloads/pdf/employment/marijuana_screening.pdf last accessed Aug. 22, 2020). [13] Id. [14] Id. (the author cannot divine how, despite the collective wisdom of the esteemed members of the Commission, a “fraud investigator” can be excepted from the ban on testing based on a “significant impact on health and safety” without first impermissibly linking a positive result with “a lack of trustworthiness or lack of moral character”). [15] See, generally, Press Release, The Leadership Conference on Civil and Human Rights, 125 Groups Urge Congressional Action on the MORE Act (Aug. 14, 2020) (on file with author) (expressing that “mass criminalization, racially biased policing, and over-enforcement of drug law violations have devastated the social and economic fabrics of communities of color, while also tearing apart the lives of millions of individuals and families. The continued enforcement of marijuana prohibition laws results in over 600,000 arrests annually, disproportionately impacting people of color. . . This also means that these individuals will be marked with a drug conviction record that will affect their ability to work, find housing, and otherwise provide for their families”).



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