Philadelphia Employers Prohibited from Conducting Pre-Employment Testing of Marijuana

As we welcome the new year and say goodbye to the chaos of 2021, employers within the city limits of Philadelphia should take notice of a new law impacting workplace drug testing programs.

Philadelphia, PA employers are prohibited from testing applicants for marijuana effective January 1, 2022. The city ordinance was passed by the Philadelphia City Council on April 22, 2021, and was signed into law by the Mayor on April 28, 2021. The new law, titled ‘Prohibition on Testing for Marijuana as a Condition of Employment, states that it “shall be an unlawful employment practice for an employer, labor organization, employment agency or agent thereof” to require a prospective employee to submit to pre-employment marijuana testing as a condition of employment.

The new ordinance does not address the testing of current employees and still allows employers to discipline an employee for being under the influence of marijuana or while possessing marijuana while at work.

The language of the ordinance does provide some relief for employers. The ordinance details that the prohibition on marijuana testing does not apply to “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].” Employers should take caution with this broad exception as it appears to require a prior determination by the enforcement agency (the Philadelphia Commission on Human Relations). Additional exceptions are as follows:

The new law does not apply to employers conducting drug testing as required by:

• • 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.

 

Exceptions to the new law also apply for individuals applying for the following positions or job types:

• • 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.

 

Action Items

Philadelphia joins New York City as the only two municipalities that currently prohibit private employers from conducting marijuana testing pre-hire. Nevada permits the testing of marijuana in a pre-employment test but prohibits employer actions based on a positive drug test for marijuana.  The trend of employee protections related to the legal and medical use of marijuana will undoubtedly continue in 2022.

Employers are strongly encouraged to review and update their workplace drug testing policies, procedures, and job descriptions (especially for job functions considered safety or security-sensitive). A primary focus for employers should be on their post-hire testing plan. Provide your managers and supervisors with training on recognizing the signs and symptoms of drug and alcohol use in the workplace. Reasonable suspicion testing will arguably be the most valuable component to maintaining a safe workplace while complying with the changing legal landscape, driven by the changing marijuana laws.

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