A new law in New York City will prohibit most employers who operate there from conducting pre-employment drug testing for marijuana.
The law was passed last month and will go into effect May 10, 2020.
Certain positions, such as police officers, construction workers, commercial drivers, and workers caring for children or medical patients, among others, were excluded from the law.
About 2.8 percent of workers and job applicants tested positive for marijuana in 2018, according to Quest Diagnostics statistics.
Supporters of the New York City law said it would knock down a barrier that blocks people from employment based on private behavior and not ability to do the job. They also pointed out that marijuana can remain in the system for extended periods of time.
“If you ingest weed in whatever manner a month ago, I’m not sure how that prevents you from doing a job now,” Public Advocate Jumaane Williams, a Democrat who sponsored the proposal, told the New York City Council.
But not everyone agrees. “Private businesses should have the power to determine their own hiring practices – not just in deciding what skills and experience are relevant to certain positions, but also whether the use of a specific drug could have an adverse impact on a perspective employee’s ability to perform,” Council Republican Leader Steven Matteo said in a statement.
While recreational marijuana use is now legal in many states, it is still illegal in New York. But the city’s employment laws are among the nation’s most protective of workers.
“To say New York City is worker-friendly is an understatement,” said Gregg Kligman, an associate in the employment law practice at Meyer, Suozzi, English & Klein in Garden City.
With the passage of the new law, companies with operations in New York City that have drug testing policies “need to use this grace period before the law takes effect to change their policy or procedure,” said A. Jonathan Trafimow, partner and chair of the employment law practice group at Moritt Hock & Hamroff in Garden City.
Kligman, however, said he is advising clients with offices in New York City to stop testing for marijuana now, rather than waiting for the deadline to take effect. He said it is also likely that similar laws will pop up elsewhere across the state.
Though recreational marijuana use is illegal in New York, the state has a legal medicinal marijuana program, as do most states. Medical marijuana users in Massachusetts, Connecticut and Rhode Island have won lawsuits in recent years against companies that rescinded job offers or fired workers because of positive tests for pot. A number of businesses around the country have simply stopped testing job applicants for marijuana.
“Over the past few years, a number of laws have been passed that require companies to be more careful about what they ask before offering prospects a job,” said Christine Malafi, senior partner and chair of the corporate department at Ronkonkoma-based Campolo, Middleton & McCormick. For instance, laws limiting the use of criminal background checks and prohibiting companies from asking about salary history have gone into effect in various jurisdictions.
“In this environment where unemployment is pretty low and where marijuana is becoming ever more socially acceptable…employers are either philosophically or practically having to take a long, hard look at whether they’re even going to screen for pot,” said Michael Clarkson, a Boston-based employment lawyer who specializes in drug-testing issues.
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