A common onboarding practice is about to become illegal in New York City. Effective May 10, 2020, most New York City employers will be prohibited from requiring job applicants to undergo testing for marijuana. The new law makes mandatory marijuana testing of prospective employees equivalent to an unlawful discriminatory practice, such as denying a job applicant employment because of his or her race, gender, or any other protected characteristic.
The law will apply to all job applicants in New York City, subject to a few exceptions, such as applicants for:
- law enforcement positions;
- work as a laborer, worker, or mechanic on a public construction project or work as a construction superintendent, site safety manager, or site safety coordinator on any construction project;
- any position requiring a commercial driver's license;
- any position involving the supervision of children, medical patients, or "vulnerable persons" as defined within New York Social Services Law § 488(15); or
- any position that may significantly impact the health or safety of employees or the public.
The law also states that it shall not apply to drug testing in the following situations:
- mandatory drug testing of prospective employees pursuant to federal regulations promulgated by the U.S. Department of Transportation;
- drug testing that is a condition of a prospective employer's receipt of federal government funds, whether by government grant or contract;
- mandatory drug testing of prospective employees pursuant to any federal or state statute, regulation, or order intended to promote safety or security; or
- a prospective employer that is a party to a collective bargaining agreement that addresses the pre-employment drug testing of job applicants.
Despite the several exceptions noted above, the law is expected to affect most employers in New York City. Insofar as the law makes mandatory marijuana testing a discriminatory practice, New York City employers who reject a job application based upon the results of a failed marijuana test may face a failure-to-hire lawsuit for front pay and other monetary damages.
In order to limit that litigation risk, New York City employers that do not fit into any of the exceptions above should review their job postings and consult with their drug testing vendors to ensure they comply with the law before it takes effect. New York City employers with questions about whether they qualify for any of the exceptions or whether their job postings comply with the new law should consult with experienced employment counsel.