On April 9, 2019, New York City Council passed a bill amending the New York City Human Rights Law (NYCHRL), to bar NYC employers from testing prospective employees for marijuana use. The Bill comes in the wake of the City’s efforts to reduce the legal consequences of marijuana use, including reducing arrests and prosecutions for low-level marijuana-related crimes.

The text of the Bill declares it to be “an unlawful discriminatory practice for an employer … 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.” However, the Bill excludes the following jobs from the ban:

  • Police officers
  • Peace officers
  • Positions with a law enforcement or investigative function at the New York City Department of Investigations
  • Workers on construction sites
  • Positions requiring a commercial driver’s license
  • Positions requiring the supervision or care of children, medical patients, or vulnerable persons
  • Positions with the potential to significantly impact the health or safety of employees or members of the public

The provisions of the law also exempt drug testing required pursuant to:

  • Certain regulations promulgated by the federal Department of Transportation.
  • Any contracts or grants of financial assistance entered between the federal government and an employer that require drug testing of job applicants as a condition of receiving the contract or grant.
  • Any federal or state statute, regulation, or order that requires drug testing of job applicants for purposes of safety or security.
  • An employer’s collective bargaining agreement that specifically addresses pre-employment drug testing of a job applicant.

The Bill still requires approval by Mayor Bill de Blasio, and would take effect one year after its passage.

Violations of the NYCHRL include the risk of:

  • Civil penalties of up to $250,000
  • Requirement that the complainant be hired
  • Requirement that the complainant be reinstated following termination
  • Requirement that the complainant be promoted
  • Back pay
  • Front pay
  • Compensatory damages
  • Punitive damages
  • Attorney’s fees and costs.

Although the Bill is not yet enacted as law, employers should closely monitor its progress. If you have any questions or concerns about this bill, Reed Smith’s experienced Labor and Employment Group is ready to speak with you. For more information regarding this Bill and its effects on employer hiring practices, please contact your Reed Smith attorney.