NYC Proposed Rules Would Allow More Pre-Employment Cannabis Testing

A proposed rule change to New York City’s ban on pre-employment cannabis testing could see the list of jobs that are exempt from the prohibition expand.

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Workers who need to drive regularly as part of the job (even without a commercial driver’s permit), construction workers, power or gas utility workers could all find themselves unprotected from pre-employment drug screenings.

New York City passed a limited pre-employment cannabis testing band in May 2019 that went into effect May 10, 2020. According to the original rule, “Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” 

The original rule granted exceptions to positions requiring commercial driver’s licenses, as well as those where supervision of children, medical patients or other vulnerable persons occurred. Any position with the potential to significantly impact the health or safety of employees or members of the public are also exempt from the prohibition, as is any position within the federal government that requires pre-employment testing, among others.

The proposed change “would at least expand the universe of workers who could still be tested,” says Cozen O’Connor member George Voegele in an interview with Cannabis Business Times. “Positions involving maintaining or fueling aircraft, involving work on heavy machinery like in a factory setting, or a construction crane operator … under these proposed regulations, you could have drug testing for them,” he says.

While a handful of municipalities, including Washington, D.C., and Richmond, Va., have enacted or are working on passing legislation banning pre-employment cannabis tests, NYC is the first major market to review and expand exemptions to such a law.

“Suspicionless drug screening by employers has been a staple of workplace culture in America for over three decades,” says NORML deputy director Paul Amentano in an email to CBT. “NORML maintains that policies which impose discriminatory sanctions toward those who use cannabis during their off-the-job hours ought to be discouraged, and that performance-based testing ought to be considered in those instances where there is suspicion that an employee may be impaired while on the job. As long as one’s off-the-job cannabis use does not impede one’s on-the-job performance, such behavior should be of no concern to employers.”

It remains unknown how enacting the rule change might affect the state’s patient registrations in its medical cannabis program. The state’s medical cannabis access law includes patient protections, but expanded pre-employment screenings could dampen program participation if patients or those considering cannabinoid medication feel it could hurt their employment chances. 

“Public policy changes tend to be incremental so it is hardly surprising that regulators, in these initial phases, tend to exhibit an abundance of caution,” Armentano says. “It is our expectation that these policies will continue to evolve and liberalize over time as both the public, lawmakers, and employers become more comfortable with cannabis’ rapidly changing legal and cultural status.”