In this episode of The Proskauer Brief, partners Harris Mufson and Evandro Gigante discuss recently passed legislation by the New York City Council, which would prohibit some employers in NYC from requiring job applicants to submit to drug tests for marijuana use. Specifically, the bill would amend the City’s Fair Chance Act to make it an unlawful discriminatory practice for an employer, including an employment agency or their agents, to require that a prospective employee or an applicant submit to drug testing regarding the presence of marijuana as a condition of employment. That bill, if signed by Mayor de Blasio, would take effect within one year after it becomes law.

Harris Mufson:  Hello and welcome to The Proskauer Brief: Hot Topics on Labor and Employment Law. I’m Harris Mufson, and I’m here today with Evandro Gigante. On today’s episode we’re going to discuss pre-employment testing regarding marijuana use and considerations for employers more generally regarding marijuana use in the workplace.

Evandro, let’s start with some recent legislation. The New York City Council recently passed a law that prohibits most New York City employers from requiring job applicants to submit to drug tests for marijuana use. Can you describe that law, generally speaking?

Evandro Gigante:  Sure. On April 9th of this year, the New York City Council passed a bill that would amend the city’s Fair Chance Act to make it an unlawful discriminatory practice for an employer, including an employment agency or their agents, to require that a prospective employee or an applicant submit to drug testing for the presence of marijuana as a condition of employment. That bill, if signed by Mayor de Blasio, would take effect within one year after it becomes law. And while the bill hasn’t yet been signed, a spokeswoman for the mayor recently said that the legislation does have his full support.

Harris Mufson: And is that legislation only about employment applicants, or what about employees of New York-based employers?

Evandro Gigante: So the legislation governs only pre-employment testing for marijuana. It does not address what an employer can and cannot do during the course of an employee’s employment.

Harris Mufson: And does the law apply to city employers or only a subset, employers who have employees in New York City?

Evandro Gigante: So there are several exceptions to the law as one could imagine. And so those exceptions largely involve areas of public safety. So for instance, the law does not apply to applicants who are applying for law enforcement jobs or to work on construction sites and not just those operating heavy machinery. The law also would not apply to individuals who are applying for positions that require for example, a commercial driver’s license or positions that require the supervision or care of children, medical patients, or people with disabilities.

While those are the exceptions that are actually written into the law, there are also, there’s also language that gives the commissioner of citywide administrative services and the chairperson of the City Commission on Human Rights wide latitude to make yet additional exceptions for positions that have the potential to significantly impact the health or safety of employees or members of the public. So that means that these administrative agencies could well create new exceptions through rule making.

Another notable exception is that drug testing provisions contained in the new bill if passed, or if signed by the mayor, would not apply to collective bargaining agreements, as it would also not apply to pre-employment drug testing that would be required by federal or state regulations, contracts, or grants. Now even with those exceptions, and they are quite broad, I think it’s fair to say that there are large numbers of city employers that would be affected by the legislation, assuming that employers actually do conduct pre-employment drug testing for marijuana.

Harris Mufson: Why don’t we talk for just a moment about the practical implications of this legislation, because we all think it is likely going to be adopted by Mayor de Blasio?  What should employers be thinking about in terms of getting out in front of this new law?

Evandro Gigante: So I think the practical impact really depends on the degree to which employers actually test for marijuana in pre-employment drug testing. Not all employers do. Of course those employers that do will need to know that now you cannot test for pre-employment marijuana use as the law would prohibit such testing going forward.

It’s also important to keep in mind that even though the law that has recently been passed will likely be signed, employers may still and should still have the right to maintain a drug-free workplace, which means that employers can maintain policies that prohibit employees from being under the influence of or using drugs at work and certainly should enforce those policies through employee discipline.

Now in some ways it’s fair to say that this law and others is a sign of a trend recently to sort of treat marijuana almost like alcohol use. In other words, legalize the use of the product, but nevertheless provide that employers still have the right to ensure that employees aren’t operating machinery or working under the influence of drugs or alcohol, and disciplining employees who are found to have violated that policy. Now it’s also important keep in mind that pre-employment drug tests for marijuana can be of limited value. Urine testing is generally the most common form of drug testing, but it does not for example document current impairment by use of marijuana.

Now in the context of marijuana use, it’s also important for employers to really focus on monitoring employee performance, in making sure that employees are not working under the influence. So in that regard, the proposed legislation really has no impact on an employer’s ability to maintain that type of monitoring and a drug-free workplace policy to ensure that employees are not impaired while at work.

Harris Mufson: Evandro, you previously referenced that there are different state laws that govern the use of marijuana, both recreational, medicinal, et cetera, that differ state by state. How does that impact how employers are supposed to be thinking about these sort of issues in terms of employees’ use of marijuana in the workplace?

Evandro Gigante: So the way that I would advise employers in this area is one, be mindful of the fact that different jurisdictions, and in fact even some cases different cities, for example perhaps even New York if this recent legislation is signed by the mayor, really treat marijuana use differently. As you noted, some states permit only medicinal use; other states permit recreational use. Currently there are ten states and Washington, D.C. that have legalized marijuana for recreational use while 33 states have legalized medical marijuana. They really run the gamut in terms of states across the country. California was the first such state to legalize marijuana use back in 1996. That was for medicinal purposes. Washington, D.C. residents recently, at least in November 2014, voted to legalize marijuana use. In Massachusetts, legislation has been passed allowing individuals to carry marijuana. And in New Jersey, certainly there has been a push towards legislation and support from the state’s governor to legalize recreational use of marijuana. Those are just examples.

For employers that operate in multiple jurisdictions,  you really need to be aware of the fact that these laws are changing, and that by virtue of these laws changing, it could mean that in certain circumstances if an employee tests positive for marijuana, it’s not sort of a de facto termination for violating a drug policy if in fact that individual is operating in a state where the medicinal marijuana is permitted and that individual has the certifications from a physician that the state allows in order for someone to use  marijuana for medicinal purposes.

So the idea is employers need to be mindful of the fact that these laws exist, mindful that there may be jurisdictional differences even on a city-by-city basis. And therefore ultimately really focus on continuing to monitor employee performance for substance abuse and ensuring that your policies are being complied with, being on the lookout for things like accidents or injuries, impaired sense of timing, altered problem-solving capabilities, changes in sensory perception, the types of things that may be indicative of signs of marijuana use, as that is probably the best option for enforcing those policies certainly in the workplace.

Harris Mufson: Alright, thanks Evandro. And thanks for our listeners for joining us today on The Proskauer Brief. Stay tuned for more insights on the latest hot topics in labor and employment law and be sure to follow us on iTunes, Spotify, and Google Play.