NYC Employers Barred from Weeding Out Cannabis-Using Job Applicants

New York City recently joined Maine and the District of Columbia in passing legislation banning most employers from requiring applicants to submit to a pre-employment test for cannabis. The City Council passed the bill in April by a vote of 40-4, and it became law on May 10, 2019, with an effective date of May 10, 2020. This new law expands the scope of the New York City Human Rights Law’s prohibitions on making pre-employment inquiries, which already preclude employers from seeking information about applicants’ criminal conviction, credit and salary histories. New York City employers who conduct pre-employment drug tests should review their practices to ensure compliance with this new ordinance. The New York City Commission on Human Rights, the agency charged with enforcement of the City Human Rights Law, has the authority to issue up to $250,000 in sanctions for intentional violations of the law.

The Statute

Subject to certain exceptions, the local law makes it an “unlawful discriminatory practice” to require prospective employees to “submit to testing for the presence of any tetrahydrocannabinols or marijuana” as a condition of employment. Because this legislation is specific to prospective employees, employers remain free to test their current employees for the presence of cannabis, and presumably may test new employees immediately upon hire.

Exceptions

The statute specifically excludes from the scope of the law applicants for employment in the following positions:

1. Police officers;
2. Certain construction workers;
3. Positions requiring a commercial driver’s license;
4. Providers of care to children, medical patients or other “vulnerable persons” recognized by applicable law; and
5. “In any position with the potential to significantly impact the health or safety of employees or members of the public,” as specified by the commissioner of citywide administrative services or the chairperson of the City Commission on Human Rights.

The statute also excludes positions for which testing is required under applicable law or regulation, including, for example, regulations promulgated by the Department of Transportation.

Also excluded from the scope of the statute are positions in connection with a government contract which specifically provides for pre-employment drug testing. Employers may continue the practice of testing current employees for the presence of cannabis, and may take appropriate steps when they have reason to believe that an employee is under the influence of cannabis during working hours.

Worth noting, however, is that this provision of the law does not necessarily exclude government contractors who have adopted policies pursuant to the Drug-Free Workplace Act of 1988 (the “DFWA”). The DFWA conditions the award of certain federal government contracts on employers’ commitment to a drug-free workplace through, among other things, the adoption of policies and procedures to further that end. In September 2018, a federal court in Connecticut found that an employer’s refusal to hire an employee with a prescription for medical cannabis constituted a violation of that state’s Palliative Use of Marijuana Act, notwithstanding the fact that the employer was required to maintain a drug-free workplace under the DFWA. The court reasoned that the DFWA does not compel employers to adopt a “zero tolerance” policy with regard to off-duty drug use, but instead mandates only that employers take reasonable steps to ensure that the workplace is free of illegal drugs. Noffsinger v. SSC Niantic Operating Company, LLC, 338 F. Supp. 3d 78 (D. Conn. 2018). By that rationale, government contractors subject to the DFWA would not be excluded from New York City’s ban on pre-employment cannabis testing unless their contract with the government expressly mandated such testing.

Also exempt from the statute are applicants for employment in a position subject to a collective bargaining agreement (“CBA”), where the applicable CBA expressly calls for pre-employment drug testing.

Practical Guidance

• Current New York State law considers certified users of medical marijuana as having a disability under the State Human Rights Law, entitled to all the legal protections of other employees and applicants with disabilities. Employers in New York City are under a duty to engage in a cooperative dialogue with certified users of medical cannabis to determine the extent to which they may perform the essential duties of their job, with or without accommodation. If they have not already, employers in New York City should revise applicable policies to make clear that they will participate in a cooperative dialogue with users of medical cannabis to explore reasonable accommodations. Employers should also revisit “zero tolerance” cannabis policies for consistency with state and local law.
• Under the new City law, New York City employers who conduct pre-employment tests for cannabis may continue to do so until May 2020, the effective date of the recent legislation. However, their testing practices should be adjusted accordingly in anticipation of that effective date.
• Businesses that use the services of third-party staffing agencies or professional employment organizations should ensure that those entities’ pre-employment screening practices are consistent with New York City law.
• Similarly, businesses should review their agreements with testing labs to ensure that the labs with which they contract do not screen for cannabis as a matter of course.

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Manufacturing, cultivation, distribution and possession of cannabis remains illegal under federal law and under certain state laws, and is strictly regulated in those states which have legalized medical or recreational cannabis.