
- law enforcement positions, such as police officers, peace officers, or investigators with the department of investigation;
- positions as laborers, mechanics, workers, contractors, or other persons working on a public work site;
- positions that require compliance with certain safety requirements NYC Building Code;
- positions requiring a commercial driver’s license;
- positions requiring the supervision or care of children, medical patients, or vulnerable persons; or
- positions that could “significantly impact the health or safety of employees or members of the public.”
The
ordinance also makes it clear that it does not trump any drug-testing
requirements in DOT regulations, federal contracts, federal or state statutes,
or a union contract.
Given the above
exclusions, New York City appears to have recognized that pre-employment
testing for marijuana is still important and necessary for safety-sensitive
positions. The city is expected to provide further guidance on the ordinance by
issuing various rules and regulations.
So, you
might be wondering if this trend will hit other states, such as Minnesota? Currently,
only medical marijuana is legal under Minnesota law, but efforts to legalize
recreational marijuana have been gaining momentum in recent years as 10 states have
now legalized recreational use of the drug. In fact, a recent Forbes article
predicted that Minnesota would be one of a handful of states to legalize
marijuana in 2019. Of course, marijuana possession and use is still illegal
under federal law.
In addition,
Minnesota employers can still lawfully drug test applicants and employees as
long as they follow the Minnesota Drug and Alcohol Testing in the Workplace Act
(“DATWA”). If recreational marijuana becomes legal in Minnesota, it will be
interesting to see how the new law interacts with Minnesota’s Lawful Consumable
Products statute, which generally prohibits employers from refusing to hire an
applicant or discipline an employee because the employee “engages in or has
engaged in the use or enjoyment of lawful consumable products.” It may be,
though, that courts will find that the Lawful Consumable Products statute does
not protect state law marijuana usage based on the federal prohibition on
marijuana.
For now, Minnesota
employers should continue following their drug testing policies and the DATWA,
which allow for marijuana testing. Stay tuned for further updates on this
smokin’ hot topic.
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