Last updated: November 23, 2020
Advocates for marijuana reform cheered the New York City council’s decision to shield prospective employees from marijuana drug testing last year.
However, there were concerns about the law interfering with federally mandated drug testing of safety-sensitive employees. Employers were urged to contact city government officials en masse to voice their thoughts on the matter.
In March of this year, the New York City Commission on Human Rights proposed additional rules to Chapter 2 of title 47 of the Rules of the City of New York. The commission accepted written public comments until April 16th. They also urged citizens who wished to speak at the hearing on that day to do so.
Ultimately, government officials revised the law to include exceptions, otherwise known as carve-outs.
Exceptions to the rule
The added section addresses proposed exceptions to the law. In other words, employers can drug test prospective employees for marijuana if:
- The position requires the employee to work on an active construction site regularly or within one week of hire
- The employee regularly operates heavy machinery
- An employee regularly works on power or gas utility lines
- The position requires the daily operation of a motor vehicle
- Impairment would interfere with the employee’s ability to take adequate care in carrying out the required job duties thereby posing an immediate risk of death or serious harm to the employee or other people
The proposed changes also note that “a significant impact on health and safety” doesn’t include concerns that a prospective employee who tests positive for tetrahydrocannabinol (THC) or marijuana indicates a lack of trustworthiness or lack of moral character.
A sigh of relief
Employers of the safety-sensitive workforce no doubt breathed a collective sigh of relief when they learned that the new law included carve-outs.
Moreover, the exceptions opened the door for employers of the general workforce. It encouraged them to make changes to job descriptions stressing the need—documented in writing—for safety where applicable. Rewording job descriptions to include safety concerns could allow continued drug testing for marijuana.
Marijuana impairment affects both motor skills and cognitive thinking—employees should be in command of both when they’re on the job.
The federal government hasn’t removed marijuana from the list of controlled substances. Employers—especially those who employ the safety-sensitive workforce or are mandated to drug test for marijuana by another government entity—should be allowed to test prospective employees for marijuana use.
Adding a new twist
Employers could soon be facing another wave of protest regarding marijuana drug testing in general. It appears that recreational marijuana laws are looming on the horizon. And, it looks like the legislature is going to approve it soon.
Lieutenant Governor Kathy Hochul stated the next budget for the State of New York could include recreational marijuana legalization.
“It was being considered even prior to the pandemic but now more than ever, as we’re finding how cash strapped our state will be as we run out of revenues, I think it will absolutely be on the table for consideration in the next budget,” (D) Lieutenant Governor Kathy Hochul said.
If it happens, employers can hold fast to the safety considerations left open in the carve-outs.
Still, we’d like to advise New York employers to take caution when disciplining employees for issues relating to marijuana. It’s a good idea to seek counsel if you have any doubts regarding the new law. Doing so is your best defense against running the risk and cost of a future lawsuit.