Effective January 1, 2022, most Philadelphia employers will be prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. Currently, only New York City and Nevada have similar drug testing restrictions, but we expect this trend to continue. Nevada prohibits employers from taking adverse action against applicants who test positive for marijuana, with exceptions for, among other jobs, safety-sensitive positions and motor vehicle drivers who are subject to testing under state or federal law. New York City, with some similar exceptions, also bars employers from requiring applicants to submit to testing for marijuana. Notably, recreational marijuana laws passed recently in New Jersey and New York arguably prohibit pre-employment testing for the drug in most cases.
There are exceptions to the new Philadelphia ordinance. Specifically, the prohibition does not apply to individuals applying to work in the following positions or professions:
- Police officer or other law enforcement positions;
- Any position requiring a commercial driver’s license;
- Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
- Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance.
It also does not apply to drug testing required pursuant to:
- Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
- Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
- Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
The ordinance requires the agency tasked with enforcement responsibility to promulgate regulations for the implementation and administration of the new requirements.
In a time where marijuana legalization is rapidly expanding, all employers should reassess their workplace drug testing policies to be sure they are in compliance with existing and soon to be effective laws. This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance complying with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and other legal rights.