NYC On Track to Change Employee Drug Testing Policy

May 9, 2019 | Blog

On Tuesday, April 9th, 2019, the New York City Council passed a bill that, if signed by Mayor Bill de Blasio, would be the first of its kind in the country in banning employers from drug screening job applicants for marijuana. The bill, which was passed 40-to-4 by the city council, would make it a discriminatory practice for companies to require prospective employees to be pre-tested for the chemical compound THC, the active component in marijuana.

No other state has passed such legislation, even those in which recreational marijuana has already been legalized. Ironically, although marijuana possession has been decriminalized in New York since the late 1970s, its use still remains illegal in the state unless prescribed for certain medicinal purposes. With efforts to legalize the drug for recreational use in New York stuck in deadlock for the time being, the new bill, sponsored by public advocate Jumaane D. Williams, aims to ease the restrictions around marijuana use in the meantime.

Requiring prospective employees to take drug tests became popular during the Reagan era’s “drug-free workplaces” campaign and has continued to be a common feature of the hiring process. But as the legality surrounding marijuana usage is changing around the country, employers and policy makers alike are having to rethink the stigma surrounding the drug.

Proponents of the new bill argue that the presence of THC in a job applicant’s system alone is not a valid indicator of their future work performance. Since drug tests do not show when, where, or with what frequency the drug was consumed, they cannot be used to disqualify an otherwise qualified applicant. Advocates for the new policy also argue that a person who may legally use marijuana in another state should not be penalized in New York if traces of it show up in their system a month later.

While the new bill would afford some leniency to marijuana-users seeking employment, it’s certainly not a free-for-all pass. If an employee is suspected of using marijuana or being under the influence of drugs while at work, the employer will still have the right to implement drug testing. Williams and the other Democrats backing the bill insist that the legislation’s main purpose is not to enable illegal drug usage, but rather to remove an arbitrary obstacle that keeps many New Yorkers from finding gainful employment. Williams emphasizes this fact, making it clear that “[This bill] is not a permission to come to work high, it is not permission to come to work impaired, but we are not speaking about that. We are speaking about people who are prevented from going to work in the first place.”

The new policy would also carry some noteworthy exceptions, including not applying to employees working in high-risk or caregiving capacities such as pilots, truck drivers, construction workers, police officers, emergency responders, lifeguards, and those supervising children. Federal and state employees not under the city’s jurisdiction would also be exempt from the new policy and would be subject to the respective state and federal laws regarding drug testing requirements in the hiring process.

Following confirmation from a mayoral spokesperson that de Blasio fully supports and is expected to sign the bill, there has been pushback from companies who feel that the city shouldn’t be meddling in the hiring policies of the private sector. Employers opposed to the bill have argued that drug testing is a valuable tool that helps them identify applicants whose performances are more likely to suffer and whose judgments may be less keen as the result of marijuana usage. The city council, however, is of the prevailing mind that professional aptitude should not be decided based on what an employee does in their private, personal life—at least in the case of marijuana usage.

If signed, the bill will become effective one year thereafter. It’s unclear whether the efforts to legalize marijuana in New York will have progressed any further by that point. But if the national trend towards legalization continues, employers all over the U.S. may—eventually—have to abandon marijuana testing as part of the hiring process altogether.

If you have any questions regarding New York City employee hiring practices or drug policies, please contact Philip S. Mortensen.