Effective May 10, 2020, the City of New York enacted a law prohibiting most public and private employers from testing prospective employees for marijuana pursuant to a pre-employment drug test. The prohibition was added as a new basis of unlawful employment discrimination pursuant to the New York City Human Rights Law (“NYCHRL” – Section 8-107, paragraph 31).
Construction employees, in many situations, are exempt from that prohibition. Testing is therefore permitted of many employees on most larger projects, in particular laborers, workers, mechanics and safety personnel. There are also important limitations to pre-employment marijuana testing that employers need to carefully consider when developing these policies and procedures.
The law specifically prohibits employers, labor organizations, and employment agencies from requiring a “prospective employee to submit to testing for the presence of any tetrahydrocannabinols [THC] or marijuana in such prospective employee’s system as a condition of employment.” A violation of this prohibition is now considered an “unlawful discriminatory practice” under the NYCHRL, which carries with it stiff penalties and the potential for punitive damages.
As stated above, the new law contains an exception which permits employers in the construction industry to perform such pre-employment drug screening, but the way it is worded creates some possible limitations.
The new law does not refer to or define construction workers, and instead does so by referencing positions requiring compliance with Section 3321 of the NYC Building Code or Article 8 Section 220-h of the New York Labor Law. Section 3321 establishes Site Safety Training (“SST”) requirements and Section 220-h refers to public construction work for the State or the City of New York where the cost of all work to be performed under the contract is at least $250,000.
As a result, the following categories of construction workers can be tested under the new law:
For contractors operating in the City of New York, now is an important time to reconsider your company’s policies and procedures relating to pre-employment drug testing, including the possible addition of such testing.
The law also permits testing of other employees, including:
Notably, the last category is a bit vague and may further expand the scope of construction related testing that is permitted in the construction setting. The New York City Commission on Human Rights has proposed (but not yet issued), certain amendments to the Official Compilation of the Rules of the City of New York that illuminate the meaning of this catchall exception.
An employer’s right to perform pre-employment marijuana testing under the proposed amendments highlight work at an active construction site, the operation of heavy machinery, work on power/gas utility lines, and the daily operation of motor vehicles, among other examples. Since the amendments may impact the reach of testing on construction projects, we will be tracking the proposed amendments.
It is important to note that the law is prospective in the sense that it applies only to pre-employment testing; random and post-accident drug testing of current employees remains undisturbed. Employers can drug test in the pre-employment context for drugs other than marijuana and THC.
In order to avoid conflicts with federal, state and city requirements, as well as those agreed upon in collective bargaining agreements, the law also permits pre-employment marijuana testing for the following reasons:
Peckar & Abramson, P.C., suggests that employers consider the impact of this law on its operations, and, as applicable:
Please feel free to contact us with any questions.