As a way of easing cannabis restrictions, the New York City Council passed a bill that would no longer allow employers to force job applicants to take drug tests for marijuana use. This bill was passed as efforts to legalize marijuana have stalled. It is not believed that any other cities or states have passed similar bans, even in those that have legalized marijuana. At the same time, another bill was passed that would stop the city from requiring marijuana testing for people on probation. Both of these bills are awaiting the Mayor’s signature. Assuming it is signed by the Mayor, the employment screening bill would take effect next year.
The bill regarding employers forcing applicants to take drug tests for marijuana would affect both public and private employers in New York City, including companies that have headquarters elsewhere. While this law would directly impact the applicant while they are in the background check phase, not every employee would be exempt from drug testing. If workers appeared to be under the influence of marijuana at work, employers would still be permitted to drug test. There are also safety-sensitive provisions put in place for industries where safety is paramount, such as law enforcement and constructions, as well as jobs that require the supervision of children or medical patients.
Pre-employment drug testing started to become common in the 1980’s after Ronald Reagan issued an executive order calling for drug free workplaces in the federal government, and mandated drug testing at federal agencies. This Drug Free Workplace Act then extended to federal contractors and federal grant recipients. According to SHRM, by 2011 more than half of all U.S. employers conducted drug screening on all their job candidates as a part of the background check process.
As noted above, while many cities and states have legalized marijuana use, this is the first such bill regarding testing for marijuana. With the legalization, many employers are beginning to reconsider their views on marijuana testing with the feeling that they may not be able to get good candidates if they test for marijuana.
New York City is once again at the forefront of making historic changes to employment law and employer/employee relations. If history around other employment issues is a predictor, it’s safe to assume other cities and states may not be far behind.