Limitations on pre-employment testing for marijuana

Excerpted from The National Law Review by Epstein Becker & Green

As of September 2019, 33 states and Washington, DC, have legalized medical marijuana use, and 10 states and Washington, DC, have legalized both medical and recreational marijuana use. Many of these states have enacted laws that protect employees and job applicants from discrimination based on their status as medical marijuana users. However, on May 10, 2019, New York City went a step further and became the first municipality in the country to prohibit employers from requiring prospective employees to submit to testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana).

New amendments to the New York City Human Rights Law prohibit employers, labor organizations, and employment agencies from requiring prospective employees to submit to marijuana or THC drug testing as a condition of employment. The law describes such pre-employment testing as an “unlawful discriminatory practice.”

The law carves out several types of jobs for which pre-employment drug testing for marijuana and THC will be permitted, including (1) safety-related positions; (2) transportation-related positions; (3) caregivers; (4) positions for which drug testing is required by any federal or state statute, regulation, or order for purposes of safety or security; (5) positions for which drug testing is required by a contract with the federal government, or for which the federal government provides funding; and (6) positions for which drug testing is required pursuant to a collective bargaining agreement. Notably, the law does not provide any exceptions specific to financial services employers.

Before the law takes effect on May 10, 2020, financial services firms should review their drug- testing policies and any other documents relating to pre-employment drug testing (e.g., employment applications or offer letters) in order to ensure that they do not violate the new restrictions, and they should consider that New York City may just be an early adopter of this type of law. Additionally, firms should train human resources personnel, as well as supervisors and managers, on any changes made to current policies and practices in response to the changing landscape regarding marijuana and any changes pursuant to the new New York City law.