PRE-EMPLOYMENT TESTING FOR TETRAHYDROCANNABINOLS OR MARIJUANA – LOCAL LAW 91 OF 2019

New Subdivision 31 of Section 8-107 of the Administrative Code of the City of New York (the New York City Human Rights Law), added by Local Law 91 of 2019, prohibits employers, including City 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.

Pursuant to Section 8-107(31)(b), the prohibition does not apply to an application for certain positions. It provides:

(b) Exceptions. (1) The provisions of this subdivision shall not apply to persons applying to work: (A) As police officers or peace officers, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation; (B) In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law; (C) In any position requiring a commercial driver’s license; (D) In any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in paragraph 15 of section 488 of the social services law; or (E) 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. (2) The provisions of this subdivision shall not apply to drug testing required pursuant to: (A) Any regulation promulgated by the federal department of transportation that requires testing of a prospective employee in accordance with 49 CFR 40 or any rule promulgated by the departments of transportation of this state or city adopting such regulation for purposes of enforcing the requirements of that regulation with respect to intrastate commerce; (B) Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; (C) Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (D) Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

The Commissioner has determined that these titles meet those conditions and are exempt from the prohibition pursuant to the section 8-107(31)(b).