New York State might not be legalizing marijuana this year, in large part due to complications from the coronavirus outbreak, but at least many of those still in the workforce in New York City won’t risk being denied jobs over a positive THC test thanks to a local law that goes into effect next month. And now a city commission is proposing regulations on who exactly will be protected from pre-employment cannabis testing.
The New York City Commission on Human Rights proposed a rule, which was published in The City Record on Tuesday, that
When the City Council first approved the legislation—which was enacted without Mayor Bill de Blasio’s (D) signature last year—it included language carving out exceptions from the prohibition on testing for those applying to certain jobs such as police officers and people charged with supervising or caring for children, as well as positions “tied to a federal or state contract or grant.”
The law, which goes into effect starting May 10, also exempts jobs with “the potential to significantly impact the health or safety of employees or members of the public.”
To that end, these new proposed regulations from the commission seek to explain exactly what constitutes such a position.
Here’s who would still be subject to pre-employment drug testing under the proposal:
1) People in jobs that require them to regularly be on active construction sites,
2) those who regularly operate heavy machinery,
3) those who regularly work with power or gas utility lines,
4) those who use a motor vehicle on approximately a daily basis and
5) those for whom impairment “would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.”
“These broad, vague exceptions—which include anyone who drives daily—make no more sense than requiring anyone who ever drives a car to permanently abstain from alcohol,” Karen O’Keef, state policies director with the Marijuana Policy Project, told Marijuana Moment. “Cannabis stays in one’s system for over a month, so a positive test has nothing to do with if a person is impaired at work. The only exception that should apply is when federal law or contracts require pre-employment drug screening.”
The commission also clarified in the proposed rule that “a ‘significant impact on health and safety’ does not include concerns that a positive test for tetrahydrocannabinols or marijuana indicates a lack of trustworthiness or lack of moral character.”
A public comment period is now open for people to weigh in. Feedback will be accepted until April 16, the day the commission is scheduled to hold a hearing on the issue.
In addition to passing the pre-employment cannabis testing ban last year, the City Council also approved resolutions to make it so simple cannabis possession alone doesn’t warrant the removal of a child from a guardian and to require the New York Department of Health to create hospital drug testing regulations for pregnant women or those giving birth, “including informing patients of their rights before any discussion of drug use or drug testing.”
Advocates have celebrated the modest reform victories, but the sting of a defeat on statewide legalization is still fresh. While Gov. Andrew Cuomo (D) included legal cannabis in his budget proposal earlier this year and repeatedly insisted that the policy change be pursued through that vehicle, he said over the weekend that the prospect is “effectively over” for 2020.
Lawmakers in favor of legalization had signaled that might be the case as the state grappled with the COVID-19 pandemic, forcing them to shift legislative priorities. That said, there is a revised legalization bill that was recently introduced which could theoretically be taken up later this year if lawmakers opt to reconvene.
This story was updated to include comment from MPP.
Photo courtesy of Chris Wallis // Side Pocket Images.