New York City Adopts Rules Clarifying the “Safety-Sensitive” Exception for Pre-Employment Marijuana Tests – JD Supra

Seyfarth Synopsis: On June 16, 2020, the New York City Commission on Human Rights adopted new rules clarifying the catch-all “safety-sensitive” exception to the prohibition against New York City employers requiring job applicants to submit to a pre-employment drug test for THC (marijuana or cannabis). The rules are effective July 24, 2020.

As we previously reported here, effective May 10, 2020, it is considered an unlawful discriminatory practice in New York City for an employer, labor organization, or employment agency to require a job applicant to submit to a marijuana test as a condition of employment. The law states that it does not apply to people applying to work in the following positions:

positions in law enforcement; certain construction jobs (as defined in the law); any position requiring a commercial driver’s license; positions requiring the supervision or care of children, medical patients, or vulnerable persons (as defined in the law); and positions with the “potential to significantly impact the health or safety of employees or members of the public,” as determined by rules promulgated by the City.

The law also does not apply to drug testing required pursuant to: (1) Department of Transportation (Part 40) or state or local drug testing regulations; (2) federal contracts between the federal government and an employer or any grant of federal assistance from the federal government to an employer that mandates drug testing; (3) any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; and (4) any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of the applicants.

As noted above, the law does not apply to positions with the “potential to significantly impact the health or safety of employees or

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