Employer Sued for Alleged NYC Pre-Employment Marijuana Testing Violation

In New York City, employers may not test candidates for marijuana (or tetrahydrocannabinols (THC)) unless an exception is met. A class action complaint was filed in March 2021 against a well-known employer alleging the employer requires candidates to submit to pre-employment marijuana drug tests in violation of the NYC Human Rights Law (NYCHRL).

As outlined in the complaint, the named plaintiff applied for a “Sortation Associate” position in the employer’s Staten Island warehouse. In citing the job description and the interview, the complaint alleged there was no mention regarding a mandatory requirement for this position to operate machinery or heavy equipment. Following the interview, the plaintiff consented to a drug test which was performed on-site via an oral swab. He then received a conditional offer that was contingent in part on a passing a drug test. From there, the complaint states that his conditional offer was revoked based on a positive drug test for marijuana.

The complaint highlighted the issue regarding the operation of machinery or heavy equipment as that constitutes one of the many exemptions under the NYCHRL. Here is the complete list of specific exemptions included in the NYCHRL that would allow employers to test candidates for marijuana:

1. Required by the U.S. Department of Transportation under 49 C.F.R. Part 40 or related state and local rules (e.g., flight crew and train dispatchers)
2. Required by the federal government as a condition of receiving a contract or grant
3. Required by federal or state law “for purposes of safety or security”
4. A collective bargaining agreement includes terms related to pre-employment drug testing of job applicants
5. The position falls into one of these categories:
   • Police officers
   • Peace officers
   • Law enforcement or investigative positions at the NYC Department of Investigation
   • Positions covered by New York City Building Code § 3321, which covers certain workers at building sites
   • Positions covered by New York Labor Law § 220-h, which covers certain workers at public work sites
   • Positions requiring a commercial driver’s license
   • Positions supervising or caring for children
   • Positions supervising medical patients
   • Positions supervising vulnerable persons
   • Positions that regularly work on active construction sites*
   • Positions that regularly operate heavy machinery*
   • Positions that regularly work on or near power or gas lines*
   • Positions that drive motor vehicles on most work shifts*
   • Positions that fuel an aircraft, provide information regarding aircraft weight and balance, or maintain or operate aircraft support equipment*
   • Positions where drug impairment would pose an immediate risk of death or serious physical harm to the employee or to other people*

* These exemptions marked were added following rules adopted by the NYC Commission on Human Rights effective July 24, 2020.

Employers impacted by the NYCHRL requirements should review their drug testing policies and procedures. Now that New York state has legalized recreational marijuana there may be an additional need to review these policies as well. As always, Asurint recommends consultation with qualified legal counsel.