While it has been a challenge for employers to keep up with the explosion of medical and recreational marijuana laws spreading across the nation, employers have taken some comfort in that most of these states still grant employers the right to maintain a drug-free workplace and take action against those who test positive for marijuana. Yet, the tide seems to be shifting, with more courts granting pot smokers certain rights and finding that employers are required to comply with federal and state disability laws when confronted with medical marijuana users. Now it seems states and localities are stepping in and granting certain employment protections to recreational marijuana users. As we previously reported here, effective February 1, 2018, Maine became the first state in the country to protect employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana. In fact, because Maine only allows employers to prohibit the use and possession of marijuana “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace,” non-regulated employers may no longer test job applicants for marijuana and cannot take action against an incumbent employee based solely on a positive test result for marijuana.

New York City seems well on its way to enacting a similar measure. On April 9, 2019, the New York City Council passed (by a 41-4 vote) a bill (Intro. No. 1445-A) that will make it unlawful for an employer, labor organization, or employment agency to require a job applicant to submit to a marijuana test as a condition of employment. The bill exempts from the prohibition: positions in law enforcement; construction jobs (as defined in the law); any position requiring a commercial driver’s license as well as those subject to Department of Transportation drug testing regulations (Part 40); positions requiring the supervision or care of children, medical patients, or vulnerable persons; and positions with the “potential to significantly impact the health or safety of employees or members of the public,” as determined by rules promulgated by the City. Also exempt are employers with federal contracts that mandate drug testing and any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of the applicants.

If Mayor Bill de Blasio approves the bill, it will take effect one year after enactment.

Now more than ever, employers in all jurisdictions should consider reviewing their existing drug testing or substance abuse policies and determine how best to address any employee positive test result for marijuana, especially in states with medical marijuana laws. In jurisdictions like Maine and, possibly, New York City, employers may also need to consider working with their drug testing vendors and Medical Review Officers to ensure that job applicants are not tested for marijuana. As mentioned, more states are enacting medical marijuana laws and courts have issued employee-friendly decisions addressing existing laws, which makes it particularly important for employers to stay ahead of this evolving area of the law.