By Katherine Miller
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May 2019 saw the passage of a city ordinance unlike one we’d ever before seen. In a nutshell, the New York City Commission on Human Rights (the Commission) considers pre-employment testing for the presence of THC or marijuana a discriminatory practice, and therefore prohibits employers from performing such tests. Employers in the city have been required to comply as of early 2020.
The Original Ordinance
As passed, the ordinance included carveouts for specific situations where pre-employment THC testing is still permitted. Specifically, the carveouts included are traditional safety-sensitive positions, including the following:
- Police/peace officers;
- Law enforcement/those with investigative functions at the Department of Investigation;
- Positions requiring a Commercial Drivers’ License (CDL);
- Positions requiring the supervision/care of children;
- Positions requiring the supervision/care of medical patients or vulnerable persons; and
- Any position that could impact the health or safety of other employees or members of the public as deemed by the Commissioner of Citywide Administrative services or the Chairperson.
Under the ordinance, Department of Transportation (DOT)-regulated testing continues per 49 CFR Part 40 (Part 40) requirements, meaning that the ordinance does not limit testing for those employees that are DOT-regulated. Additionally, federal contractors are not subject to the ordinance, and neither are employers that receive grant money from the federal government and are required to perform pre-employment testing as a condition of their grant(s).
2020 Amendment
In early 2020 the Commission recognized that more protections were needed for employers with safety-sensitive employees. Therefore, the Commission recently passed an amendment, adding the following exemptions to the pre-existing list:
- Positions requiring employees to regularly work on active construction sites (or requiring work on active construction sites within one week of beginning employment);
- Positions requiring employees to regularly operate heavy machinery;
- Positions requiring employees to regularly work on or near power or gas utility lines;
- Positions requiring employees to operate motor vehicles on most work shifts;
- Positions requiring employees to fuel an aircraft, provide information about aircraft weight and/or balance, or maintain/operate aircraft support equipment; and,
- If impairment would interfere with the employee’s ability to take adequate care in carrying out his/her job duties and would pose an immediate risk of death or serious physical harm to the employee or others.
Additionally, the Commission specified that an employer’s concern that a positive test for THC or marijuana would indicate a lack of moral character or trustworthiness does not constitute “a significant impact on health and safety.”
Looking Forward
Already, New York City employers are required to comply with the original ordinance and the 2020 amendments to the ordinance. As such, employers with operations in the city should carefully review their policies, ensuring that they have safety-sensitive positions clearly defined and that these positions align with those outlined in the ordinance.
Already, at least one state has followed New York City’s lead and passed legislation that limits when an employer can test employees or applicants for THC/marijuana, and it’s possible other states will follow suit. Employers should stay aware of such legislation and speak to local representatives about potential safety concerns should workplace drug testing be limited.
Need to update or review your policy to ensure compliance with New York City’s ordinance or laws in other states? Contact CCG at policy@currentconsultinggroup.com to learn more about our custom policy services.
