New York City's New Employment Drug Testing Law

by The True Negative

As of May 10, 2020, New York City has banned employers from testing for marijuana and tetrahydrocannabinols (THC) as a condition for employment. In earlier blog posts, we covered employment drug testing laws in Nevada and Illionis, two states where recreational weed is legal. The interesting thing about New York City’s situation is that recreational weed is not legal in the state of New York. However, New York City has historically taken up progressive employment policies. In 2015, the city passed the “Fair Chance Act” which prohibits most employers from factoring a job applicant's criminal history in hiring decisions and in 2017, banned employers from asking about an applicant’s salary history.

What is NYC’s stance on pre-employment drug testing in a nutshell?
New York City’s new law amends Section 8-107 of the New York City Administrative Code by adding subdivision 31 to prohibit employers from conducting pre-employment drug testing for marijuana

When did this bill go into effect?
This law was passed on April 9, 2019 by the Common Council of the City of New York and went into effect on May 10, 2020

Is recreational weed legal in New York?
Recreational weed is still not legal in New York state or New York City. Medical weed is lawful but is restricted to extremely ill patients who meet a list of criteria.

Does this new law apply to all companies?
This applies to public and private employers in New York City, including companies with headquarters elsewhere. However, some jobs and organizations are excluded. Jobs that are excluded from this exemption are “safety and security sensitive jobs.” For example:
-Police officers or peace officers, or other law enforcement positions
-Any position requiring compliance with New York City’s building code or labor law
-Any position requiring a commercial driver’s license
-Any position requiring the supervision or care of children, medical patients or vulnerable persons
-Any position with the potential to significantly impact the health or safety of employees or members of the public

Federal or state employees as well as organizations and companies tied to a federal or state contract or grant are also excluded:
-under federal, state or city department of transportation regulations that requires testing of a prospective employee with respect to intrastate commerce;
-any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;

-any federal or state statute, regulation, or order that requires drug testing of prospective employees for safety or security;
-any applicants whose prospective employer is a party to a collective bargaining agreement that specifically addresses the pre-employment drug testing of applicants.

Can I still be drug tested?
Yes, see previous response above. Additionally, this law does not ban drug testing on the job after an applicant is hired

Does this law apply to all of New York state?
No, this law is specific to New York City

Where can I find additional information on this law?
The exact details of the legislation can be found here

How does this compare to other city/state policies?
NYC is the first municipality in the country to prohibit pre-employment testing for marijuana and THC. Maine prohibits employers from testing for marijuana at the pre-employment stage and from discharging an employee for an initial positive drug test. Both Illinois’ Cannabis Regulation and Tax Act and Nevada’s AB132 still allow for pre-employment drug testing but employers cannot base hiring decisions on the results.

Will weed be legal in New York anytime soon?
57% of New Yorkers support legalizing recreational weed. However, recreational weed failed to pass in 2019, although the state did decriminalize weed. Governor Andrew Cuomo has expressed interest in legalizing recreational weed. While Cuomo had said in January that it would be part of New York’s 2020 budget, as of March, he has stated that it is “not likely” that it will be included in the 2020 state budget. New York state’s budget was due April 1st and as one of the epicenters of the coronavirus pandemic, legal recreational weed is no longer a priority.

Help bring transparency to employment drug testing by taking two minutes to submit your drug testing experiences here. Information on companies that don’t drug test is just as valuable as information on companies that do.

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