Pre-Employment Testing for Marijuana

Time for New York City employers to review their drug testing policies and practices.

Effective May 10, 2020, covered employers are not permitted to test job applicants for marijuana or tetrahydrocannabinois (THC) as a condition of employment.  They can, of course, continue to drug-test current employees and to have rules governing drug-use in the workplace. 

However, like every rule, there are exceptions.  Employers may require tests for job applicants applying for specific types of jobs, for example:
Police officers
Peace officers
Law enforcement or investigative positions at the NYC Department of Investigation
Positions requiring a commercial driver’s license
Positions supervising or caring for children
Positions supervising medical patients

The NYC Human Rights Commission is finalizing rules that will expand the list of exceptions to include. among others, the following positions:
Positions that regularly work on active construction sites
Positions that regularly operate heavy machinery
Positions that regularly work on or near power or gas lines
Positions that drive motor vehicles on most work shifts
Positions where drug impairment would pose an immediate risk of death or serious physical harm to the employee or to other people

The Bottom Line:  Given the current climate, and the NYC Human Rights Commission's proclivity to give liberal reading to these employee protection laws, even if one of the excepted positions does not apply to an employer's business, it may be a good idea for the employer to refrain from testing for marijuana as a pre-condition of hiring.