As discussed in our previous blog post, effective May 10, 2020, covered New York City employers are not permitted to test job candidates for marijuana or tetrahydrocannabinols (THC) as a condition of employment. The law, however, contains exceptions to this general prohibition on preemployment testing and an employer may require testing for job applicants applying for specific types of jobs.

On June 16, 2020, the New York City Commission on Human Rights issued the final rule clarifying the exception for positions deemed to “significantly impact the health or safety of employees or members of the public.” A position is exempt pursuant to this exception if:

  • The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
  • The position requires that an employee regularly operate heavy machinery;
  • The position requires that an employee regularly work on or near power or gas utility lines;
  • The position requires that an employee operate a motor vehicle on most work shifts;
  • The position requires work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment; or
  • 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.

The text of the final rule, which becomes effective July 24, 2020, can be found here.