New York Drug Puzzle

A New York City man has filed a class-action lawsuit against Amazon for rescinding his job offer because he tested positive for marijuana use. Michael Thomas was offered a package sorting job, but it was contingent on the outcome of the drug test. According to the lawsuit, he is one of more than 100 people Amazon refused to hire for the same reason.

This might seem like a simple issue. The company has a drug-free policy, and it is implementing it.

But it is not so clear-cut. Differences between city and state are putting employers in a tough spot.

Recreational marijuana is not yet legal in New York. The state is in the middle of yet another push to try to legalize recreational use for adults over the age of 21. Governor Andrew Cuomo is hoping the third time will be the charm, especially since it’s estimated the state could collect about $300 million in sales tax every year.

Even though recreational use of the drug isn’t legal yet, it is currently illegal for employers in New York City to test job applicants for marijuana use. The New York City Human Rights Law, which bans such pre-employment testing, went into effect on May 10, 2020.

Under the ban, employers are only allowed to test applicants for the more safety-sensitive positions such as:

• Commercial Driving
• Construction
• Law Enforcement
• Child Supervision
• Healthcare
• Other positions that could impact the health or safety of others.

Thomas did not fall into any of the safety-sensitive categories. Amazon has not yet responded to the lawsuit.

Companies are allowed to continue testing current employees in order to maintain a drug-free workplace.

California Following New York’s Lead

California lawmakers are also trying to prevent employers from using past drug use as a reason to deny people jobs – but they seem to be doing it in a more orderly fashion than New York.

First, recreational marijuana has been legal in California for five years, so it makes sense that an employer should not be able to refuse to hire someone for doing something that is completely legal.

The proposed legislation specifically calls out urine and hair testing because they can detect marijuana use that happened 30 to 90 days ago, respectively. Supporters of the legislation say this is akin to digging through someone’s trash looking for empty beer bottles and assuming they had been drunk on the job. 

Just like the NYC law, AB-1256 would only apply to job applicants. Once hired, employers will be allowed to maintain a drug-free workplace through reasonable suspicion testing.

Please remember this DOES NOT apply to any safety-sensitive positions under the Department of Transportation.

The bill is now moving through committees. We will let you know if and when it passes.