New York City Adopts Law Banning Pre-Employment Testing for Marijuana and THC

On Friday, May 10, New York City adopted a law (Int. 1445-A) prohibiting employers, labor organizations, and employment agencies from conducting pre-employment drug testing for THC, the active ingredient in cannabis and marijuana. The law will become effective on May 10, 2020, which gives New York City employers one year to prepare. There are a number of exceptions to the prohibition on pre-employment testing. The law does not apply to certain safety-sensitive positions, such as:

• police/law enforcement positions
• positions that require OSHA certifications or construction safety training under New York state laws
• positions that require a commercial driver's license
• positions that require the supervision or care of children, medical patients, or vulnerable persons
• positions that could significantly impact the health or safety of employees or members of the public

Additionally, employers are still permitted to engage in THC testing in accordance with:

• U.S. Department of Transportation required testing
•  Federal or State required testing
• Testing required under Collective Bargaining Agreements

Seemingly, the law applies to prospective employees only. It is unclear what, if any, impact the law will have on an employers’ ability to test for marijuana and THC after an employee is hired or to test existing employees. We will continue to monitor and provide updated information as soon as the city provides additional guidance. In the meantime, New York City employers that engage in pre-employment should begin to review and modify their practices and policies to exclude marijuana and THC testing for prospective employers.