Plastic container and pen for pre-employment marijuana screening.

New York City Pre-Employment Pot Test Ban Now in Effect

By Douglas Lipsky

In April 2019, the New York City Council passed a law barring most employers from conducting marijuana tests on job candidates. The law went into effect on May 10, 2020. If you have been turned down for a job after taking a marijuana test, it takes a skilled employment lawyer to protect your rights.

Marijuana Tests in the Workplace

The City Council passed amendments to the New York City Human Rights Law (NYCHRL) prohibiting employers from requiring applicants to submit to marijuana testing as a condition of employment. Under the amended law, pre-employment drug testing is considered an unlawful discriminatory practice.

Several types of jobs are exempt from the pot test ban, including:

  • Police officers
  • Positions requiring a commercial driver’s license
  • Positions subject to drug testing under federal or state law
  • Positions requiring the supervision or care of children, medical patients or vulnerable persons 
  • Positions for which drug testing is required under the terms of a collective bargaining agreement
  • Positions with the potential to significantly impact the health or safety of employees or members of the public

It is important to note that the law doesn’t prohibit employers from testing current employees for marijuana use, or for taking disciplinary action against a worker who tests positive for THC (the psychoactive chemical in marijuana). 

Why This Matters

Although marijuana remains an illegal drug in New York, possessing small amounts of pot has been decriminalized and the use of medical marijuana with a valid prescription is legal. The new law is a reflection of the wider acceptance of recreational marijuana use; there has also been an effort by New York Governor Andrew Cuomo and state lawmakers to legalize the sale of recreational marijuana. 

Ultimately, proponents of the measure believe that pre-employment marijuana testing discriminated against low income and minority job candidates. Instead of deterring drug use, they argue pre-employment pot testing depletes the talent pool through positive test results or discouraging prospective employees from applying altogether.

For employers who have not already done so, it is crucial to review their policies and practices regarding pre-employment marijuana testing with an experienced attorney: employment applications, offering letters and any other related documents should be amended to conform with the pot-test ban. In addition, job candidates who are illegally required to submit to a pre-employment pot test may be able to recover damages.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.