On April 9, 2019, the New York City Council approved a bill that prohibits employers in New York City from testing prospective employees for the presence of THC as a condition of employment. The bill, Int. No. 1445-A, amends Title 8 of the Administrative Code, which defines an “employer” as an employer with four or more employees.
The language of the bill contains a number of limitations and exceptions which may substantially dampen its effect. Most prominently, the bill is limited to “pre-employment drug testing” of “prospective employees” and does not address testing of existing employees as a condition of continued employment. Moreover, there are several broad exceptions to the bill’s testing prohibition, including testing for positions in law enforcement, positions governed by a collective bargaining agreement which addresses pre-employment testing, positions involving construction work or requiring a commercial driver’s license, and positions involving care or supervision of children, medical patients, or vulnerable persons. The exception for children, medical patients, or vulnerable persons could be problematic. For example, it is unclear whether the exception would apply to persons applying for administrative positions in medical offices with no direct patient care responsibilities. These questions may be cleared up by the NYC Commission on Human Rights, which is directed to promulgate regulations implementing the bill.
The bill also anticipates some issues concerning federal preemption. For example, the bill contains an exception for testing required by U.S. Department of Transportation regulations, or similar regulations of state and city transportation departments. It also carves out a broad exception for testing required by state or federal law for purposes of “safety or security.” However, preemption issues remain for testing required by federal law which is not covered by these exceptions.