New York City Marijuana Testing Ban; Exempt Safety-Sensitive Positions Definition Expanded

November 2nd, 2020 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate

On April 9, 2019, the which amends Section 8-107 of the New York City Administrative Code by adding subdivision 31 to specifically prohibit employers, labor organizations, employment agencies, or their agents from requiring job applicants to submit to testing for the presence of any marijuana or tetrahydrocannabinols (THC) as a condition of employment. The ban took effect on May 10, 2020.

On June 16, 2020, the New York City Commission on Human Rights issued rules (the “Rules”) to clarify exceptions contained in the city’s Marijuana Testing Ban as it relates to safety-sensitive positions. Effective July 24, 2020, the Rules address Part E of Section 2 of the law which provides exceptions to the ban for those, “In any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission“.

The Rules clarify that this definition of a “position with the potential to significantly impact the health or safety of employees or members of the public” applies to the following positions:

  • Positions which regularly work on active construction sites
  • Positions which regularly operate heavy machinery
  • Positions which regularly work on or near power or gas lines
  • Positions which drive motor vehicles on most work shifts
  • Positions which fuel aircraft, provide information regarding aircraft weight and balance, or maintain or operate aircraft support equipment
  • Positions in which drug impairment would post risk of death or physical harm to themselves or others

The Commission further stated that it will not be filing enforcement actions for any claims related to these clarifications arising prior to the July 24 effective date.

New York City employers should review their drug testing practices and consult with their legal counsel to avert prohibited testing. Sterling clients may contact their account representative if alterations to their services are needed.

The full text of Int. No. 1445-A can be found here and FAQs regarding the ban, it’s exceptions, and the Rules can be found here.

The information contained herein is for informational purposes only. Clients are encouraged to consult with their legal counsel on the impact of this new law. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice.

This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.