NYC Adds New Protected Category to Expansive NYCHRL, Seeks to Curb Pre-Employment Marijuana Testing

May 07, 2019

By Sara B. Tomezsko

The New York City Council has passed two amendments to the already expansive New York City Human Rights Law (“NYCHRL”), one that goes into effect next month, and another awaiting signature from Mayor De Blasio. These new amendments will impact all employers covered by the NYCHRL with respect to their New York City based employees, in other words, those operating in NYC with four or more employees.

“Sexual and Reproductive Health Choices”

Starting May 20, 2019, it will be unlawful for NYC employers to discriminate on the basis of “sexual and reproductive health decisions,” defined as “any decision by an individual to receive services, which are arranged for or offered to individuals relating to sexual and reproductive health, including the reproductive system and its functions.” Examples of protected sexual and reproductive health decisions include:

Fertility-related medical procedures
STD prevention, testing and treatment
Family planning services and counseling
Use of birth control drugs and supplies
Emergency contraception
Sterilization procedures
Pregnancy testing
Abortion

Ban On Pre-Employment Marijuana Testing

On April 9, 2019, an overwhelming majority of the New York City Council (41-4) voted to pass a ground-breaking new bill that would prohibit employers, labor organizations, employment agencies, or their agents from requiring pre-employment drug screening for marijuana or tetrahydrocannabinols as a condition of employment. Mayor de Blasio is expected to sign the bill, which will take effect one year later, approximately May 2020.

Drafted as an amendment to the NYCHRL, the bill sets forth a number of exemptions. The amendment, if signed by the Mayor, will not cover applicants seeking:

Law enforcement positions
Work on a public works site covered by N.Y. Lab. L. § 220-h
Positions requiring compliance with NYC Building Code § 3321
Positions requiring a commercial driver’s license
Work requiring the supervision or care of children, medical patients, or other vulnerable individuals as defined by N.Y. Soc. Servs. L. § 488(15)
Any position that could “significantly impact the health or safety of employees or members of the public,” as determined by the Department of Citywide Administrative Services or specified in regulations to be issued by the NYC Commission on Human Rights

In addition, the bill excludes from coverage pre-employment drug testing required by state, federal or local law, or pursuant to:

Regulations issued by the federal, state and city Departments of Transportation
Contracts and grants from the federal government
Collective bargaining agreements

The bill does not impact an employer’s ability to require drug testing of current employees, consistent with any existing limitations on drug testing in the workplace and New York’s medical marijuana laws. While there is a high likelihood that Mayor de Blasio will sign the bill into law, unanswered questions remain. For example, the breadth of the many exemptions identified in the bill is unclear. For now, employers should begin evaluating their applicant drug screening procedures to be in a position to respond if this bill is indeed signed into law and becomes effective in May 2020.

Click here for a PDF of the full text