Faced with an estimated $15 billion dollar budget deficit due to the COVID-19 pandemic, the reality of legalizing adult-use cannabis (i.e., recreational marijuana) in New York State seems more likely than ever. On November 5, 2020, Governor Andrew Cuomo confirmed the time is “ripe” for passage of recreational marijuana legislation in New York given the state’s desperate funding needs and adult-use legalization’s potential to generate significant revenue. Cuomo confirmed the “pressure will be on” for New York lawmakers, especially given the legalization of recreational marijuana in neighboring Vermont and Massachusetts, as well as the recent passage of adult-use legislation in New Jersey during the November election.

Authored By: Chris Harrigan

Partner – Barclay Damom

Chris Harrigan

It is anticipated Governor Cuomo will include provisions for recreational marijuana in his 2021 proposed state budget bill, which is expected in January 2021. Assuming the adult-use provisions of the proposed legislation are similar to what Cuomo proposed in his 2020 Cannabis Regulation and Taxation Act (CRTA) and recreational marijuana is legalized in New York, employers throughout New York will need to revisit their pre-employment drug testing policies and procedures.

 

New York City Pre-Employment Testing Ban

Significant changes have already occurred in New York City, which, as of May 10, 2020, precludes employers from testing job applicants for marijuana or tetrahydrocannabinols (THC), the psychoactive ingredient of the cannabis plant. Enacted into law by the New York City Council on May 10, 2019, the testing ban was explicitly made effective one year from its passage. The testing ban, however, doesn’t prohibit an employer from testing current employees for marijuana use, nor does it limit an employer’s ability to ensure workplaces remain drug-free through policies, discipline, and other measures.

There are also some important exceptions to New York City’s testing ban of job applicants. Specifically, pre-employment testing is permissible where:

 

  1. Required by the U.S. Department of Transportation under 49 C.F.R. Part 40 or related state and local rules (g., flight crew and train dispatchers) (as defined in the applicable DOT rules);
  2. Required by the federal government as a condition of receiving a contract or grant;
  3. Required by federal or state law “for purposes of safety or security;”
  4. A collective bargaining agreement includes terms related to pre-employment drug testing of job applicants; or
  5. The position falls into one of these categories:

 

  • Police officers;
  • Peace officers (as defined in NY Criminal Procedure Law § 1.20);
  • Law enforcement or investigative positions at the NYC Department of Investigation;
  • Positions covered by New York City Building Code § 3321, which covers certain workers at building sites;
  • Positions covered by New York Labor Law § 220-h, which covers certain workers at public work sites;
  • Positions requiring a commercial driver’s license;
  • Positions supervising or caring for children;
  • Positions supervising medical patients; and
  • Positions supervising vulnerable persons (as defined in NY Social Services Law § 488(15)).

 

On July 24, 2020, a final rule adopted by the New York City Commission on Human Rights went into effect, clarifying and expanding the list of exceptions to the city’s pre-employment testing ban. Under the new rule, certain positions are “deemed to significantly impact the health or safety of employees or members of the public,” and are exempt from the testing prohibition where:

 

  • The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
  • The position requires that an employee regularly operate heavy machinery;
  • The position requires that an employee regularly work on or near power or gas utility lines;
  • The position requires that an employee operate a motor vehicle on most work shifts;
  • The position requires work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment; or
  • Impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.

 

State-Wide Ban on the Horizon?

 Outside of New York City, there is currently no statewide ban against pre-employment marijuana screening for job applicants. Nor are there any leading cases regarding the issue of pre-employment drug testing for marijuana in New York (inside or outside of New York City). However, the New York State Assembly previously introduced legislation similar to that adopted in New York City. If enacted, which is likely if the state passes adult-use legislation (and still possible even if it does not), the same prohibitions would apply statewide. In short, all New York employers who utilize pre-employment drug testing for marijuana should carefully track adult-use legislation in 2021, and, if passed, immediately familiarize themselves with New York City’s restrictions to ensure compliance. 

Chris Harrigan is a partner in Barclay Damon’s Labor & Employment Practice Area and a member of the firm’s Cannabis Team. If you have any questions regarding the content of this article, please contact Chris at charrigan@barclaydamon.com or another member of the firm’s Cannabis Team.