Q: I heard New York City is banning employers from doing pre-employment drug testing for marijuana. What do I need to know?
A: Effective May 10, 2020, New York City employers are prohibited from testing prospective employees for marijuana or tetrahydrocannabinols (the active ingredient in marijuana) as a condition of employment. The law applies to all prospective employees in New York City, regardless of whether the employer is located in New York City.
The law has a number of exceptions, including for positions that require a commercial driver’s license or the supervision or care of children, medical patients, or vulnerable persons. The law also does not apply to drug testing required by certain contracts and laws, including federal or state statutes, regulations, or orders that require drug testing for the purpose of safety or security.
The law reflects the growing acceptance of marijuana in New York, both for recreational and medicinal use. Under existing New York law, possession of up to 25 grams of marijuana has been decriminalized, and it is legal for a certified patient to possess and use medical marijuana. Existing New York law also specifically protects registered certified medical marijuana users from adverse employment actions based on their health conditions and associated marijuana use.
The law itself is quite short, and leaves a number of questions unanswered, such as whether the law has any impact on marijuana testing of current employees, and whether the law applies to New York City residents who apply for positions outside of the city. The City is expected to release rules addressing such details in advance of the effective date.
To prepare for the new law, employers should update employment applications, job postings, and drug testing policies. Employers should also analyze whether any of their positions are exempt from the new law.
Our Cannabis Practice provides advice on issues related to applicable state law. Cannabis remains an illegal controlled substance under federal law.