Marijuana Testing of Job Applicants Is Barred by City in Groundbreaking Measure

By Michael Gold, New York Times

Most employers in New York City would no longer be able to force job applicants to take drug tests for marijuana use, under a bill overwhelmingly approved this week by the City Council.

If the drug-screening law is enacted, it would put New York in relatively uncharted territory. Several drug policy and employment experts said that they did not know of similar laws on the books, even in states that have legalized marijuana.

In Maine, where voters approved legal recreational marijuana use, the law prevents employers from discriminating against people who have used cannabis, but it does not specifically regulate drug testing.

The Council’s bill would affect public and private employers in New York City, including companies with headquarters elsewhere, according to Jumaane D. Williams, the city’s public advocate and the bill’s sponsor. He said it was unclear exactly how many employers in the city screen employees for drugs and might be affected.

“I’m proud that the city has taken action where the federal and the state government have stalled,” Mr. Williams said on Thursday.

The legislation, which passed on Tuesday by a 40-to-4 vote, was the latest in a series of progressive steps that city officials have taken to ease cannabis restrictions as state lawmakers’ efforts to legalize marijuana have stalled.

In addition to Mr. Williams’s bill, the city also passed a bill that would stop the city from requiring marijuana testing for people on probation. Both bills are currently awaiting Mayor Bill de Blasio’s signature.

The mayor’s administration fully supports the employment bill, a spokeswoman for the mayor, Olivia Lapeyrolerie, said on Thursday. The employment screening bill would take effect one year after it is signed into law.

Not every employee would be exempt from drug testing if the bill becomes law. If workers appeared to be under the influence of marijuana at work, employers would still be permitted to drug test.

The bill also carves out exemptions for certain safety-sensitive industries, including law enforcement and construction, as well as jobs that require supervising children or medical patients.

The bill also would not stop federal and state employees or contractors, who are not under the city’s jurisdiction, from being tested. Nor would it end the drug-test requirements imposed by the federal government on transportation workers like truck drivers and pilots.

Dionna King, a policy manager at the Drug Policy Alliance, acknowledged that the range of exceptions could weaken the impact of the bill. Still, she said the bill was an important step toward ending the stigma attached to marijuana use.

“Through this legislation, there will still be a good number of folks who will no longer have to submit to testing just to get employment,” Ms. King said.

Pre-employment drug testing started to become increasingly common in the 1980s. Former President Ronald Reagan issued an executive order in 1986 that called for “drug-free workplaces” in the federal government, and mandated drug testing at federal agencies.

In 1988, the Drug-Free Workplace Act extended the policy to federal contractors and recipients of federal grants. From there, it ultimately spread to the private sector, pushed by advocates of strong antidrug policy, according to Mark A.R. Kleiman, a professor at public policy at New York University.

By 2011, more than half of United States employers conducted drug screenings on all of their job candidates, according to a survey from the Society for Human Resource Management, a trade organization. Only 29 percent of employers did not conduct drug tests at all.

“It has become so normalized now,” Ms. King said. “People expect it as part of the hiring process.”

Employers defended the testing as a way to root out prospective workers whose drug use could have led to impaired judgment, lower productivity and higher absentee rates, according to Melissa J. Osipoff, a lawyer at the employment law firm Fisher Phillips.

But opponents to pre-employment drug screening believe that the practice is overly invasive and creates an unnecessary barrier to employment. Mr. Kleiman and Ms. King said there was little evidence that passing a drug test would be a predictor of an employee’s job performance.

In recent years, as attitudes toward marijuana have shifted, some employers began to reconsider their views on marijuana testing, Ms. Osipoff said.

Even in states that have legalized some form of marijuana, employers have felt pressed to reconsider drug-testing policies in order to hire competitively, Ms. Osipoff said.

“In states where it’s legal, they’ll tell you, ‘We can’t get good candidates if we test for marijuana,’” she said.

But Kathryn S. Wylde, 64, president of the Partnership for New York City, which represents business leaders, called the bill an overreach by the City Council.

“This is another instance where City Council is interfering in the relationship between employees and employers,” she said.

Ms. Wylde, 64, said the bill would increase costs for global employers in particular, forcing them to modify existing policies to comply with the city’s law.

In New York, Gov. Andrew M. Cuomo said that he would push to legalize recreational marijuana this year. Though he had initially hoped to include the measure as part of the state budget, lawmakers were unable to reach a deal.

Mr. Williams said that while the state continued to negotiate legalization, it was important for the city to continue to enact what he viewed as sensible marijuana policy.

“If we want to be a progressive city, we have to really put these things into action,” he said.

Quest Diagnostics, one of the nation’s largest medical testing companies, released data on Thursday that said that marijuana use had risen among United States workers in 2018. An analysis of more than 10 million drug-test results showed that 2.3 percent of the American work force tested positive for marijuana use in 2018, up from 2 percent a year earlier.

Quest also said that the percentage of American workers who tested positive for illicit drugs was at its highest point since 2004.

The country’s growing acceptance of marijuana usage was likely to force employers to take a harder look at their drug-testing policies, Ms. Osipoff said. She expected that New York City’s bill would push employers across the country to consider broad changes.

“When New York City passes a law, that just gets employers talking,” she said.

One of the Council members who opposed the bill, Steven Matteo, a Republican of Staten Island, said he felt the city should not interfere with the private sector’s hiring discretion.

“I believe private businesses should have the power to determine their own hiring practices,” said Mr. Matteo, the City Council’s minority leader.

Gold, M. (2019). Marijuana testing of job applicants Is barred by city in groundbreaking measure. New York Times. Retrieved from https://www.nytimes.com/2019/04/11/nyregion/marijuana-drug-testing-nyc.html