Thursday, April 18, 2019

NYC Prohibits Pre-Employment Marijuana Testing—Is Minnesota Next?

On April 9, 2019, the New York City Council passed a city ordinance that prohibits employers from requiring applicants to submit to drug tests for marijuana. The city’s Mayor is expected to sign the ordinance in the next few weeks and it would take effect one year after it is signed into law. Importantly, the ordinance only applies to job applicants—it does not apply to current employees. This is the first law within the U.S. to prohibit employers from drug testing for marijuana.

While this is certainly uncharted territory, marijuana users should temper their excitement and employers shouldn’t panic. The ordinance includes several common sense exceptions. Specifically, the ordinance does not apply to any individuals applying for:
  1. law enforcement positions, such as police officers, peace officers, or investigators with the department of investigation;
  2. positions as laborers, mechanics, workers, contractors, or other persons working on a public work site;
  3. positions that require compliance with certain safety requirements NYC Building Code;
  4. positions requiring a commercial driver’s license;
  5. positions requiring the supervision or care of children, medical patients, or vulnerable persons; or
  6. 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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