Last year the New York City Council by a vote of 40-4 enacted Int. 1445-A (the “Law”), which amends the New York City Human Rights Law to prohibit employers and staffing firms from pre- employment drug testing for marijuana and THC (the active ingredient in marijuana). The Law will go into effect on May 10, 2020. It is applicable to employers with four or more employees who physically work in New York City and, pending further guidance, only to those employees who physically work in New York City (including temporary employees of staffing firms).

Exceptions

The Law does not apply to job applicants for positions:

• in law enforcement.
• in construction work.
• requiring a commercial driver’s license.
• supervising children, medical patients, and other “vulnerable people”.
• having the potential to significantly impact the health or safety of the public.The Law does not apply to drug testing required by:
• any federal, state or New York City law or regulation requiring drug testing of prospective employees in certain transportation-related positions.
• a contract with the federal government, or a grant of financial assistance from the federal government, that requires drug testing of prospective employees as a condition of receiving the contract or grant.
• a valid collective bargaining agreement that specifically addresses pre-employment drug testing.

N.B. The Law does not prohibit employers from drug testing for marijuana or other drugs during employment if the employer reasonably suspects that an employee is under the influence of drugs while working.

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Employers who are covered by the Law should immediately review their pre-employment drug testing procedures for New York City-based employees, remove any references to pre- employment testing for marijuana or THC from their application forms, job advertisements, postings and offer letters (unless an applicable exception exits), and instruct their employees about compliance with the Law.

Although the Law was the first of its kind in the country, it is not the last. If prohibitions on pre- employment marijuana testing become prevalent throughout the country, employers who do business in multiple states should consider adopting uniform polices regarding marijuana testing

– unless required by a client for a particular locality that permits such testing.*

For more information about this Legal Advisory or assistance with compliance, please contact Paul Pincus at (212) 588-0022 or php@orllp.legal.

* This Legal Advisory is provided for informational purposes only. It does not constitute legal or tax advice. Recipients should consult with their own legal and tax counsel before taking any actions based on the information contained in this Advisory.