Pre-Employment Testing for Marijuana?

In May 2019, Section 8-107 of title 8 of the NYC admin code was amended to make it unlawful for an employer and others to test for marijuana or THC as a condition of employment.  This law becomes effective May 10, 2020.  The NYC Commission on Human Rights is promulgating rules for the implementation of this law. There was a public hearing on Jan. 9, 2020 concerning potential exceptions to the general prohibition on pre-employment testing to which written testimony by interested parties was submitted.  There will be another opportunity for public comment if proposed rules are published, so keep an eye out for further notice from the commission.

In the meantime, only the following exceptions which have been written into the law apply, such that pre-employment drug testing for marijuana or THC is permitted for the following jobs:

  • As police officers or peace officers, or in a position with a law enforcement or investigative function at the department of investigation
  • Construction workers
  • Operators of vehicles requiring a commercial driver’s license
  • In any position requiring the supervision or care of children, medical patients or vulnerable persons
  • Or 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

The legislation also permits pre-employment drug testing for marijuana and THC if required pursuant to:

  • Federal, state of city department of transportation regulations or rules
  • Any federal contract or grant
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security
  • a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants