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No Weed Testing for Job Applicants

Bill Morris in Board Operations on April 16, 2019

New York City

Weed Testing
April 16, 2019

Last week, by an overwhelming 40-4 vote, the New York City Council passed Intro. 1445, a bill that will prevent most employers, including co-op and condo boards, from forcing job applicants to undergo drug tests for marijuana use. No such law is on the books in any other American city, even in states that have legalized recreational marijuana use. 

In Maine, where recreational marijuana use is legal, the law prevents employers from discriminating against people who have used cannabis, but it does not specifically regulate drug testing during the hiring process or in the workplace. 

“I’m proud that the city has taken action where the federal and the state governments have stalled,” Jumaane Williams, the city’s public advocate and the bill’s sponsor, told the New York Times. In a statement, he added, “We need to be creating more access points for employment, not [fewer]. It makes absolutely no sense that we're keeping people from finding jobs or advancing their careers because of marijuana use.” 

“One has to be careful and look at which employees are affected, because there are certain carve-outs,” advises Michael Manzi, a partner at the law firm Smith, Gambrell & Russell

Indeed, not every job applicant or employee will be exempt from drug testing if Mayor Bill de Blasio signs the bill into law, as he is expected to do. (The law will go into effect one year after he signs it.) If a worker appears to be under the influence of marijuana while on the job, employers would still be permitted to demand a drug test. And certain industries are exempted from the drug-test ban when hiring, including construction, law enforcement, and jobs that involve supervising medical patients or children. The bill would not end the drug-test requirements imposed by the federal government on transportation workers, including truck drivers and pilots. 

“Some co-ops and condos have large staffs,” Manzi continues, “and if the board thinks an employee is using drugs on the job, it can still conduct a drug test. Depending on how it affects the employee’s performance, it could be grounds for dismissal. You don’t want a stoned doorman.” 

Howard Rothschild, president of the Realty Advisory Board, which represents building owners in contract negotiations with unionized staffers, says, "In terms of our industry, I don’t see this having that big an effect. The two questions boards need to ask are: does the employee appear to be under the influence while on the job? Is it affecting job performance? If so, they shouldn’t be working at that moment.” 

Intro. 1445 is the latest city council measure designed to protect job applicants. Under the Fair Chance Act of 2015, employers with at least four employees, including co-op and condo boards, are forbidden to inquire about a job applicant's criminal history until after they have made a conditional job offer. If the employer decides to withdraw a conditional job offer after examining the applicant's criminal history, the employer is then required to give the applicant a written copy of the analysis of the criminal history and the reasons the job offer was revoked. Acceptable grounds for revoking a job offer are if there's a "direct relationship" between the criminal offense and the job's requirements, or if the hiring would create a "reasonable risk" to property or personal safety. 

One of the few city council members who voted against Intro. 1445 was Steven Matteo, a Republican of Staten Island. “I believe private businesses should have the power to determine their own hiring practices,” Matteo told the Times

New York State legalized medical marijuana in 2014, and Governor Andrew Cuomo is now pushing to legalize recreational use of the drug.

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