New York City’s Pre-Employment Marijuana Testing Legislation

In April 2019, New York City passed local laws prohibiting employers from conducting pre-employment drug testing for marijuana.  The law is no scheduled to go into effect on May 10, 2020.  This legislation will impact the majority of employers in New York City and prohibits employers from requiring “a prospective employee to submit to testing for the presence of THC or marijuana in such prospective employee’s system as a condition of employment.”

Local Law Exclusions:

1. Law enforcement
2. Any position requiring a commercial driver’s license
3. Any position requiring the supervision or care of children, medical patients, or vulnerable individuals
4. Any position with the potential to significantly impact the health or safety of employees or the public as identified by the City of New York
5. Certain positions requiring compliance with §3321 of the NYC Building Code or §220-h of the NYS Labor Law

Other Employer Carveouts:

1. US Department of Transportation standards or similar requirements imposed by NYS or NYC law
2. Any contract between an employer or the federal government that requires drug testing
3. Any federal grant an employer may have that requires drug testing
4. Any state or federal law, regulation, or order that requires drug testing of prospective employees for security or safety purposes
5. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically requires the testing of an applicant for THC

Why should we watch these changes in NYC, if we only have employees throughout the “Remainder of New York State?”  As NYC goes, so goes the rest of the state.  New York State Assembly has introduced similar legislation, if passed at the state level, the same prohibitions would apply to organizations statewide.  The state of Nevada is also introducing similar legislation statewide.  More than likely we will see these changes throughout the state.  Be prepared and start reviewing all information sooner than later.

Considerations for Potential Changes:

• Update any policies, procedures and handbook language
• Employment Application Updates
• Offer Letter Templates
• Training for Leadership
• Review Exempt Status (your organization might be able to test)
• Will this impact workers compensation or other insurance rates if this testing is not performed?
• Communication with occupational medicine providers

All organizations should begin planning for this change at the state level.  As I wrote last week, as NYC goes, the domino falls on legislation throughout the remainder of the state.  If you are unclear on the laws and regulations, seek guidance, this is a complex evolving area of legislation.

NY State Employee Handbook Considerations:

Crime Victim Leave Policy Update

Employees who are victims of a crime, a victim’s representative, or who have been subpoenaed as a witness in a criminal proceeding will be granted time off to appear as a witness, consult with the district attorney, or exercise their rights under the law. Employees should provide at least one days’ notice and more when possible. Employees may use any available paid time off. If paid leave is not available, non-exempt employees will be granted unpaid time off; exempt employees will be paid in accordance with the Fair Labor Standards Act.

What You Should Know About the ADA, the Rehabilitation Act, and COVID-19

• “The EEOC enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical examinations and inquiries.
• The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
• The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.
• The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
  • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
    • During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
    • Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
  • Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
    • Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
  • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty? 
    • Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
  • If an employer is hiring, may it screen applicants for symptoms of COVID-19?
    • Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.
  • May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
    • Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.
  • May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? 
    • Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
  • May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
    • Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.” (EEOC)