NYC Finalizes Exceptions to Prohibition on Pre-Employment Marijuana Testing
Since May 10, 2020, employers in New York City have been prohibited from requiring a prospective employee to submit to testing for the presence of any marijuana or tetrahydrocannabinols in their system as a condition of employment, unless otherwise provided by law. The new law does not apply to drug testing required pursuant to: (1) certain regulations promulgated by the U.S. Department of Transportation, (2) any contract between the federal government and an employer, or a grant of federal financial assistance, that requires drug testing of prospective employees, (3) any federal or state law that requires drug testing of prospective employees for purposes of safety or security, or (4) certain collective bargaining agreements that address pre-employment drug testing.
In addition, the prohibition on pre-employment marijuana testing does not apply to persons applying to work in the following positions:
Police officers or peace officers
Certain construction or demolition positions, and jobs on a public work site
Any position requiring a commercial driver’s license
Any position requiring the supervision or care of children, medical patients, or vulnerable persons
Any position with the “potential to significantly impact the health or safety of employees or members of the public,” as identified in regulations promulgated by the NYC Commission on Human Rights.
The NYC Commission on Human Rights recently adopted regulations identifying which positions qualify for the exemption to the testing ban based on their potential to significantly impact the health or safety of employees or members of the public. Specifically, the regulations state that a position is deemed to significantly impact the health or safety of employees or members of the public, and to be exempt from the prohibition on pre-employment testing for marijuana, if:
The position requires that the employee regularly, or within one week of beginning employment, work on an active construction site;
The position requires than an employee regularly operate heavy machinery;
The position requires that an employee regularly work on or near power or gas utility lines;
The position requires that an employee operate a motor vehicle on most work shifts;
The position requires work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment; or
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.
The regulations also clarify that “a significant impact on health and safety” does not include concerns that a positive test for tetrahydrocannabinols or marijuana indicates a lack of trustworthiness or lack of moral character.
The pre-employment marijuana testing ban went into effect on May 10, 2020, and the Commission’s implementing regulations go into effect on July 24, 2020. New York City employers should review their drug testing policies and procedures for compliance with these new requirements.
If you have any questions regarding compliance with the New York City pre-employment marijuana testing ban, please contact Amanda M. Baker at abaker@fglawllc.com, or any attorney at the Firm.
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