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New York City Prohibits Drug Testing Candidates and Employees for Marijuana

By Edgar M. Rivera

On April 9, 2019, the New York City Council (the “Council”) passed a bill that would prohibit New York City employers from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (“THC”), the active ingredient in marijuana, as a condition of employment.  Exceptions to the prohibition are provided for safety and security sensitive jobs—such as police officers, peace officers, positions with law enforcement functions, construction workers, drivers, and care givers—and positions tied to a federal or state contract or grant.

Medical marijuana in New York has been legal since 2014, when New York passed the Compassionate Care Act, which allows certified patients suffering from certain serious health conditions to obtain marijuana from their physician for medical use.  There were more than 60,000 certified patients in New York as of June 30, 2018.

Marijuana, both medical and recreational, is legal in numerous states and cities across the country.  According to the Council, the presence of these legal marijuana markets, and the potential for a future, legal recreational marijuana market in New York, has implications for workplace drug testing.  Unlike other types of drugs, which are comparatively easy to test for and produce more conclusive results, drug testing for marijuana “impairment” is complicated and imprecise; positive results can occur weeks after use and do not necessarily indicate that a person is impaired at the moment of testing.  New York City residents traveling to those states and engaging in legal marijuana consumption should not be penalized for their legal use of a product, especially when such product can remain detectable in bodily fluids for up to 30 days after last use.

Also, New York City’s Human Rights Law (NYCHRL) prohibits most employers and employment agencies from inquiring about or considering the criminal history of job applicants, including prior convictions related to marijuana possession, until after extending conditional offers of employment.  The result is that, although an employer is prohibited from inquiring about a job applicant’s criminal conviction related to marijuana prior to a conditional offer of employment, it can still subject the job applicant to a drug test for marijuana use.  As such, according to the Council, pre-employment drug testing for marijuana may unjustifiably impact an otherwise qualified job applicant’s prospect.

Among other things, the bill amends section 8-107 of the Administrative Code of the City of New York, the NYCHRL, by adding a new subdivision, which makes it an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of marijuana or THC in such prospective employee’s system as a condition of employment.  By virtue of being located within the statutory framework of the NYCHRL, prospective plaintiffs have all of the same rights as any other discrimination victim, including the right to bring claims to the City Commission as well as to a court of law, where they may seek compensatory and punitive damages, and attorney’s fees and costs.

At The Harman Firm, LLP, we support this bill.  If you believe you have been discriminated against because of your disability or lawful use of medical marijuana, contact The Harman Firm, LLP.

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