New Philadelphia Ordinance Prohibits Pre-Employment Marijuana Testing – Employment and HR

Q: Does Philadelphia have any laws regulating drug
testing for marijuana? 

A: Philadelphia recently passed an
ordinance that prohibits employers from requiring “a
prospective employee to submit to testing for the presence of
marijuana in such prospective employee’s system as a condition
of employment.” The ordinance will take effect on January 1,
2022, and applies to any person doing business in the city who
employs one or more employees.

The ordinance does not prohibit pre-employment testing of
certain types of employees, including police and other law
enforcement positions, any position requiring a commercial
driver’s license, and any position that requires the
supervision or care of children, medical patients, disabled people,
and other vulnerable persons. Also, there are exceptions from the
pre-employment testing prohibition, for instance, where drug
testing would otherwise be required by applicable law, including a
federal or state statute or regulation; where the federal
government requires testing as a condition of the receipt of a
contract or grant; or where testing is pursuant to a valid
collective bargaining agreement.

Why did the city pass this legislation?

Councilperson Derek Green, the bill’s sponsor, noted the
need to reconcile the city’s laws with the treatment of
marijuana in Pennsylvania. Pennsylvania currently allows the use of
medical marijuana but has not passed legislation to protect workers
from employment screening if they have a valid medical marijuana
card. Councilperson Green considered this “commonsense
legislation” that would protect workers with valid medical
cards and allow them to seek and maintain employment while still
enjoying the benefits of medical marijuana. Testimony at the
legislative hearing also noted that this legislation would have a
positive economic effect since people will not be barred from jobs
simply because they use marijuana outside of work.

Philadelphia is not the first jurisdiction to pass legislation
of this sort. New York City’s council passed an amendment to
its administrative code in 2019 with substantially similar
language. In addition, Atlanta, Washington, DC, Rochester, NY, and
Richmond, VA, all prohibit pre-employment marijuana screening for
certain public employees. Nevada, which allows recreational
marijuana use, prohibits both public and private employers from
refusing to hire a prospective employee because of a positive
marijuana screening, with similar exceptions for law enforcement
and public safety positions.

Other jurisdictions with statutes legalizing marijuana use for
recreational purposes, including New York, New Jersey, and Maine,
prohibit employers from taking adverse employment action against
employees solely because of their marijuana use outside of the
workplace. Although these states do not ban pre-employment
screening for marijuana outright, employers cannot reject
applicants based on a positive test for marijuana, except when
federal law requires such testing. California legalized
recreational marijuana five years ago. A bill is currently working
through its state legislature, which if passed, would prohibit
employers from discriminating or taking adverse action against
employees and applicants on the basis of a positive marijuana
test.

As more states legalize marijuana for both medical and
recreational use, it is likely that employers will be restricted in
additional jurisdictions from testing applicants for marijuana.
Employers should take heed of state and local laws in their
jurisdiction before testing their applicants and employees for the
presence of marijuana.

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