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New York Workplace Drug Testing Attorneys

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    In May 2020, New York City adopted a law that banned pre-employment marijuana drug testing, calling it 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:

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

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

    Because of the lack of clarity that the law has previously provided, on June 16, 2020, the New York Commission on Human Rights issued rules that established the Safety-Sensitive exception. A position qualifies for the exception if:

    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 to have the situation remedied.

    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, New York Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) into law. Though 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.

    Such implications of MRTA include:

    However, the law also gives employers some leeway in how they handle employment violations. For example, employers are not in violation of Section 201-d of the NYLL if they take an action related to an employee’s use of marijuana when:

    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.

    Drug Testing Discrimination in New York City: Brown Kwon & Lam

    If you are denied a position as a result of a potential employer’s noncompliance with workplace drug testing mandates, or your employer has taken action against you because of certain drug usage, you may have a case. In addition, if you are denied employment based on medical marijuana usage, you may have a discrimination claim. Do not handle these issues alone. Call the employee rights attorneys of Brown Kwon & Lam today.

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