Workplace Drug Testing Discrimination Lawyer in New York

In May 2020, New York City adopted a law that banned pre-employment marijuana drug testing. It called this form of workplace drug testing discriminatory for those employees who had previously been barred from applying to positions that required such substance tests.

Exceptions to the rule for pre-employment drug testing include:

• Police and peace officers
• Employment Positions requiring a commercial driver’s license and those governed by Department of Transportation regulations
• Positions subject to testing under federal or state regulations or grant conditions
• Positions requiring the supervision or care of children, medical patients, or vulnerable populations
• Those that include a collective bargaining agreement that includes pre-employment drug testing
• Positions with the potential to impact the health or safety of employees or the public

However, it was jobs with “the potential to impact the health or safety of employees or the public” that caused concern for employees. This forced the state to take a stance on safety-sensitive roles.

Understanding the Safety-Sensitive Exception in New York City Pre-Employment Drug Testing

Because of the law’s lack of clarity, the New York Commission on Human Rights created a clarification. On June 16, 2020, it issued rules that established the Safety-Sensitive exception. A position qualifies for the exception if:

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

The clarification of the law also added that testing positive for THC or marijuana would not indicate a lack of trustworthiness or lack of morals.

Employees Should Be Mindful of Employers Taking Advantage of the Safety-Sensitive Exception

While this is good news for some New York City employees, others are still cautious about their rights, knowing that employers are likely to rely on the safety-sensitive exception to whatever degree they can. If your employer does not update their drug protocols as a result of these clarifications, you need to speak with your employer.

The bottom line is this: If your position, or the position you are applying for, does not meet any of the above qualifications or excluded positions, you should not be subjected to the safety-sensitive exception.

But if you are, you may have an employment discrimination case, especially as new drug laws come into effect.

Marijuana Regulation and Taxation Act

In March 2021, former New York Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) into law. As per the Act, the sale of recreational-use marijuana is not expected to become legal for another year or two. New York employers and employees alike must consider the ramifications the legalization of recreational marijuana will have on the workplace when it comes into effect.

Such implications of MRTA include:

• The law does not “limit the authority of . . . employers to enact and enforce policies pertaining to cannabis in the workplace” or “exempt anyone from any requirement of federal law or pose any obstacle to the federal enforcement of federal law.”
• MRTA amends Section 201-d of the New York Labor Law (NYLL). Now it protects an employee from discrimination if the employee uses marijuana outside of business hours, off of the employer’s property, and without the use of the employer’s equipment.

However, the law also gives employers some leeway in how they handle employment violations. For example, employers are not in violation of the law if they take an action against an employee’s use of marijuana when:

• The employer’s actions were required by state or federal statute, regulation, or government mandate;
• It would cause the employer to be in violation of federal law. This would then result in the loss of a federal contract or federal funding; or
• The employee is impaired by the use of cannabis at work.

Further, in addition to the ban on pre-employment drug testing, under MRTA, it will now be unlawful for all New York employers to reject an applicant based exclusively on a positive marijuana test.