The New York City Commission on Human Rights announced a notice of public hearing and opportunity to comment on a proposed rule providing exceptions to the prohibition on pre-employment marijuana testing that will take effect in the City on May 10, 2020. Comments on the proposed rule may be submitted in writing by April 16, 2020, or may be made at a public hearing held on April 16, 2020 at 22 Reade Street, New York, New York.

As we discussed in an earlier blog post, the New York City Human Rights Law was amended last year to prohibit employers from conducting pre-employment testing for marijuana, effective May 10, 2020. While the law contains some exceptions, it also provided for additional exclusions for positions “with the potential to significantly impact the health or safety of employees or members of the public as determined by . . . (ii) the chairperson, and identified in regulations promulgated by the commission.” Now, the Commission is proposing to amend its rules to clarify exceptions to the general prohibition on pre-employment testing for marijuana.

The proposed amendment to Chapter 2 of title 47 of the Rules of the City of New York would add a new section 2-07 that reads as follows:

Section 2-07 Exceptions to the General Prohibition on Preemployment Testing for Tetrahydrocannabinols or Marijuana

(a) Exceptions Based on Significant Impact to Health or Safety: A position is deemed to significantly impact the health or safety of employees or members of the public and to be exempt from the prohibition on preemployment testing for tetrahydrocannabinols or marijuana under section 8-107(31) of the Administrative Code if:

(a) Exceptions Based on Significant Impact to Health or Safety: A position is deemed to significantly impact the health or safety of employees or members of the public and to be exempt from the prohibition on preemployment testing for tetrahydrocannabinols or marijuana under section 8-107(31) of the Administrative Code if:

1. 1. The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
   2. The position requires that an employee regularly operate heavy machinery;
   3. The position requires that an employee regularly work on power or gas utility lines;
   4. The position requires that an employee operate a motor vehicle on an approximately daily basis; or
   5. 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 or the employee or to other people.

(b) For purposes of this section, 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.

Anyone wishing to comment on the proposed rules may comment as follows:

• Website: You can submit comments to the Commission through the NYC rules website at http://rules.cityofnewyork.us.
• E-mail: You can e-mail comments to policy@cchr.nyc.gov. Include a reference in the subject line to “Proposed Rules on Preemployment Testing For Marijuana.”
• Mail: You can mail comments to the Office of the Chair, New York City Commission on Human Rights, 22 Reade Street, New York New York 10007.
• Fax: You can fax comments to Zoey Chenitz, Senior Policy Counsel, (646) 500-7330.
• Speak at the Hearing: Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by emailing policy@cchr.nyc.gov. You can also sign up in the hearing room before the hearing begins on April 16, 2020. You can speak for up to three minutes.

Written comments must be submitted by April 16, 2020.