On March 10, 2020, the New York City Commission on Human Rights (the “Commission”) proposed rules addressing exceptions recognized under the city’s ordinance generally prohibiting pre-employment testing for marijuana and tetrahydrocannabinols (THC)–the psychoactive ingredient in cannabis. The ban on pre-employment testing for marijuana and THC is slated to take effect on May 10, 2020.  The Commission announced a notice of public hearing and opportunity to comment on the proposed rules.  All comments must be submitted by April 16, 2020. 

Background on the Law

Last year, the New York City Council amended the New York City Human Rights Law to specifically prohibit employers, labor organizations, employment agencies, or their agents from requiring prospective employees, “to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”  The law permits, however, pre-employment testing for THC if required pursuant to the following:

• Regulations issued by the United States Department of Transportation and/or the New York State or New York City Departments of Transportation;

• Any contracts or grants from the federal government to an employer;

• Federal or state statutes; and

• A collective bargaining agreement.

The law permits pre-hire marijuana tests of candidates for the following jobs:

• Police officers or peace officers, or individuals in a position with a law enforcement or investigative function at the department of investigation;

• Construction workers;

• Operators of vehicles requiring a commercial driver’s license;

• Any position requiring the supervision or care of children, medical patients or vulnerable persons; or

• Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the Commissioner of the Department of Citywide Administrative Services for the City of New York’s civil service employees with respect to such civil service positions, or (ii) the Chairperson of the Commission on Human Rights and identified in regulations promulgated by the Commission.

New Proposed Rules

The new rules, when final, will identify positions “with the potential to significantly impact the health or safety of employees or members of the public,” as permitted by the law.  The proposed rules would permit testing of candidates for positions that require an employee to:

• Regularly, or within one week of beginning employment, work on an active construction site;

• Regularly operate heavy machinery;

• Regularly work on power or gas utility lines;

• Operate a motor vehicle on an approximately daily basis; or

• Where impairment would interfere with the employee’s ability to take adequate care in the carrying out of their job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.

The rules specifically state that, a “significant impact on health and safety” is not created simply because the employer believes that a positive test for THC or marijuana indicates a “lack of trustworthiness or lack of moral character.”

Instructions for Comments

Anyone wishing to comment on the proposed rules may do so as follows:

• Website: You can submit comments to the Commission on Human Rights through the NYC rules website at http://rules.cityofnewyork.us.

• E-mail: You can e-mail comments to policy@cchr.nyc.gov. Include a reference in the subject line to “Proposed Rules on Reemployment Testing for Marijuana.”

• Mail: You can mail comments to the Office of the Chair, New York City Commission on Human Rights, 22 Reade Street, New York, New York 10007.

• Fax: You can fax comments to Zoey Chenitz, Senior Policy Counsel, (646) 500-7330.

• Hearing: Anyone who wants to comment on the proposed rules at the public hearing must sign up to speak. You can sign up before the hearing by emailing policy@cchr.nyc.gov. You can also sign up in the hearing room before the hearing begins on April 16, 2020 (assuming the planned in-person meeting goes forward).

Written comments must be submitted by April 16, 2020.

Employer Takeaways

The proposed rules provide welcome and necessary guidance to employers in NYC as to which positions may be subject to pre-employment marijuana testing on and after May 10, 2020.  Final rules are expected to adopted before the new law goes into effect. It remains to be seen whether an in-person hearing will go forward in light of the COVID-19 pandemic, and city and state executive orders limiting attendance at gatherings.  To the extent that there are further notifications from the Commission about the status of these rules or the scheduled hearing, we will update this article accordingly.