Be Careful Not to Inhale: Marijuana and Employment Drug Testing
While many of us were distracted with GoT (for those of you that somehow don’t know what that means, it stands for Game of Thrones) and preparing for Avengers: Endgame (including myself), Uncle Snoop Dogg flew in and left a cloud of Mary Jane over New York when he left. Though not involved with the enactment of a recent bill in New York City, it seems like a strange coincidence that not long after Uncle Snoop was in New York a marijuana bill was enacted. But, I digress.
On April 9, 2019, the New York City Council enacted a bill that bans pre-employment testing for marijuana use. The bill would amend the City’s Fair Chance Act to make this type of testing an unlawful discriminatory practice. Specifically, the bill prohibits New York City employers from requiring a prospective employee to submit to a marijuana drug test as a condition of employment. However, there are some exceptions. Safety and security sensitive jobs, jobs tied to a federal or state contract, law enforcement personnel, commercial drivers and construction workers are all exempted from this bill. If signed by Mayor Bill de Blasio, the bill will take effect in 2020. Though it only applies to New York City employers, this bill may be the first step in legalizing marijuana and an employee-friendly route that other cities whose state has not legalized marijuana may take.
New York City is not the only place that has been impacted by Uncle Snoop’s trail of smoke. Many other states have taken an employee-friendly approach to drug testing. Among the most employee-friendly are Iowa, Kansas, Louisiana, Minnesota, and Vermont. In all of these states an employee cannot be terminated if they test positive for the first time. An employee must be given the option to go seek treatment. If the employee refuses or does not complete treatment, then and only then can the employee be terminated.
The states in our region (Ohio, Indiana, and Kentucky) may be thinking, what about me? Luckily, these states have not enacted similar employee-friendly drug testing laws, so you’re safe – for now.
With the rapid, growing push to legalize marijuana, those of you out there without drug testing laws in your state or handbook policies may just want to leave out some milk and cookies for old Uncle Snoop for when he makes it to your town. Reach out to your Labor & Employment counsel to see what drug testing laws are in effect (or are being proposed) in your area so you can stay ahead of the curve.