Effective May 10, 2020, New York City’s Human Rights Law will prohibit employers from requiring job applicants to submit to a marijuana or THC drug test as a condition of employment, with some limited exceptions. The NYC law is the first to ban pre-employment testing, but likely not the last in light of increasing momentum to legalize the recreational use of marijuana. Even states that permit medical or recreational use of marijuana have not enacted laws that prohibit employers from testing job applicants. New York City has opted to ban pre-employment testing even though recreational use of marijuana is not yet legal under New York State or City law. Information about the new law can be accessed by clicking here.

Exceptions to the law will still permit testing on individuals applying to work:

• as police or peace officers, or any position with a law enforcement or investigative function;
• in positions for which testing is mandated under federal contract or law;
• as construction or demolition workers;
• as commercial drivers;
• in positions requiring the supervision or care of children, medical patients, and persons with physical or cognitive disabilities; and
• in any position that would significantly impact the “health or safety of employees or members of the public.

New York City will issue regulations clarifying the exceptions, particularly the “health or safety” exception, which will likely be construed narrowly so the pre-employment testing ban covers as many prospective employees as possible.

Employers that operate in New York City should consider the effect the law will have on its positions and hiring practices. Although the law does not address the testing of current employees, employers should consider the extent to which it will continue to test its employees for marijuana use, particularly because the law will likely be interpreted broadly by courts.

As always, we are available to discuss New York City’s marijuana testing prohibitions, and assist employers in reviewing their policies and job descriptions to identify which positions fall within the exceptions to testing and related issues.