January 24, 2021

Volume XI, Number 24


January 22, 2021

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New York City is Blazing the Trail to Ban Marijuana Testing of Job Applicants

New York City is poised to ban employers from requiring prospective employees to undergo a drug test to detect for the presence of THC, the active ingredient in marijuana, as a condition of employment.

On April 9, 2019, the New York City Council approved a bill that would make New York City the first municipality to regulate pre-employment drug testing for marijuana, whether for medicinal or recreational purposes. The bill applies to both public and private employers operating in New York City. Although recreational marijuana is not yet legal in the State of New York (or in New York City), Governor Andrew Cuomo supports statewide legalization and this bill is viewed as an important step to achieve that goal.

There are several noteworthy exceptions, which, in the interest of public safety and security, enable New York City employers to continue to test for marijuana, including law enforcement, construction workers, positions requiring a commercial driver’s license, child care workers and positions supervising medical patients. The bill does not apply to drug testing requirements pursuant to any federal or state law, any regulation issued by the U. S. Department of Transportation for DOT-regulated positions (such as commercial truck drivers and pilots), a valid collective bargaining agreement, or a contract with the federal government or grant of financial assistance from the federal government that requires drug testing of prospective employees as a condition of receiving the contract or grant.

Importantly, employers would still be free to conduct drug testing for marijuana (and other drugs) if the employer reasonably suspects that an employee was under the influence while performing work.

Mayor Bill de Blasio is expected to sign the legislation, which would become effective one year after the bill is signed into law. Therefore, employers should consider updating their drug-free workplace policies and pre-employment screening protocols for compliance once it is enacted. We will also be watching if other cities and states may adopt similar legislation.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume IX, Number 107



About this Author

Lynne Anne Anderson, Drinker Biddle, Lawyer, Employment Litigation

Lynne Anne Anderson is a practiced jury and bench trial lawyer who handles a wide range of employment litigation, including whistleblower cases, restrictive covenant disputes and wage and hour class/collective actions. Her litigation background gives her the insights necessary to effectively counsel clients who are dealing with frontline employee issues to effectuate a win-win resolution of workplace disputes, and to implement policies and protocols to limit litigation. Lynne is Co-Chair of the Labor and Employment Group's Fair Pay Act Obligations Team...

Alexa Miller, Labor and employment attorney, Drinker Biddle

Alexa E. Miller represents clients in a variety of employment-related disputes including discrimination, harassment, wrongful termination, wage and hour compliance, disability management and whistleblower claims in both federal and state courts and before administrative agencies.

In addition, she regularly advises employers on pre-litigation matters, conducts trainings and assists clients with drafting, reviewing and revising human resource handbooks, workplace policies, employment contracts and separation agreements.