Last year, the New York City Council approved a ban on pre-employment drug testing for marijuana. As of May 10, the ban took effect, and it stipulates that companies in the city can’t conduct pre-employment tests for THC metabolites unless the position is safety sensitive.
The original bill included language that exempted some jobs from the prohibition on testing, such as people charged with supervising or caring for children and positions “tied to a federal or state contract or grant.” It also contains a provision that allowed the New York City Commission on Human Rights to expand the list of exempted jobs.
The commission later proposed regulations last month, leaving them open for public comment until April 27. Under the proposal, workers who use heavy machinery, spend a significant amount of time on a construction site, gas utility lines, or use a motor vehicle on a daily basis would not be exempt from pre-employment testing.
Although the exemptions haven’t been finalized yet, the commission announced that “claims arising between March 10, 2020, and the date when the rules are finalized, the Commission will not be filing enforcement actions related to the above-listed positions.” This means that if an employee files a complaint about pre-employment drug testing for the aforementioned positions, the Commission will not take action.
The move has been widely praised by advocates as a proper step in protecting cannabis consumers from unfair discrimination. However, some advocates have taken issue with the list of exemptions, and argue that they are too broad.
Marijuana Policy Project (MPP), for instance, has said that the “MPP understands the City Council decided to exclude safety-sensitive positions. However, MPP believes the proposed rule goes beyond what is required by the Bill.”
“We are particularly concerned by the inclusion of a limitation for anyone who drives daily, which could impact a large number of working-class New York City residents. Science has proven that cannabis can stay in one’s system up to a month later. This means a positive test for marijuana does not prove one is impaired at work,” said DeVaughn Ward, senior legislative counsel at MPP in written testimony to the Commission.
However, according to some, employers should ultimately be able to decide whether they want a drug free work environment or not.
“Restricting an employer’s right to test for THC is the first step to prohibiting employers from all substance testing that puts accident injury and fatal liability directly upon them,” said the National Drug and Alcohol Screening Association (NDASA).
“Without exempting all employers or offering the ability to opt-in or out of Local Law 91 then a burden will be put on the shoulders of the employers to provide safe work environments by forcing them to accept applicants that are using a known impairing substance.”
Experts say the cannabis industry, including companies like SinglePoint Inc. (OTCQB: SING), would like to see more jurisdictions ban pre-employment THC tests because those tests force consumers to choose between their jobs and using a substance that they need (especially medical marijuana users).
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