We want to remind employers of a law enacted in New York City that went into effect on May 10, 2020. This law prohibits employers from requiring prospective employees to submit to testing for the presence of Marijuana (THC) as a condition of employment.
The Basics
Location: New York City
Legislation: 1445A
Type: Marijuana Drug Testing
Effective: May 10, 2020
Key Takeaways
- Restricts employers in their ability to conduct pre-employment testing for the presence of Marijuana.
- Employers may test for the presence of Marijuana for certain positions and for certain circumstances after the individual is considered an employee, such as post-accident and/or reasonable suspicion.
Who is impacted by this Ordinance?
This ordinance applies to all employers located in New York City.
What is prohibited?
The ordinance prohibits:
1) Testing for the presence of Marijuana (THC) for pre-employment testing, with some exceptions.
Are there any exceptions?
Yes, certain provisions of this ordinance do not apply to job positions where federal or state law and regulations, or City ordinance require employers to conduct pre-employment testing for Marijuana (THC), such as positions where there are safety concerns, security, or positions tied to federal or state contracts. These exceptions include:
- (a) Exceptions Based on Significant Impact to Health or Safety: 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 tetrahydrocannabinols or marijuana under section 8-107(31) of the Administrative Code if:
- (1) The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
- (2) The position requires that an employee regularly operate heavy machinery;
- (3) The position requires that an employee regularly work on power or gas utility lines;
- (4) The position requires that an employee operate a motor vehicle on an approximately daily basis; or
- (5) 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.
- (b) For purposes of this section, 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.
Are there any penalties?
The law does not describe fines or penalties at this time. An individual(s) may file a complaint with the NYC Human Rights Commission.
Recommendations
We recommend you review and discuss with your legal counsel, your organization’s policies, job descriptions, and procedures to ensure compliance with the changing laws and regulations.
Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulation.
