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

Q: Are there laws in Philadelphia that regulate drug testing for marijuana?

A: Philadelphia recently passed an ordinance prohibiting employers from “requiring a potential employee to undergo a test for the presence of marijuana in such a potential employee’s system as a condition of employment.” The ordinance comes into force on January 1, 2022 and applies to all people working in the city who employ one or more employees.

The regulation does not prohibit recruitment tests for certain types of employees, including police and other law enforcement agencies, any position that requires a commercial driver’s license, and any position that involves the supervision or care of children, medical patients, the disabled, and other vulnerable individuals. There are also exceptions to the prohibition of recruitment testing, for example if drug testing would otherwise be required under applicable law, including a federal or state law or ordinance; if the federal government requires an examination as a condition for receiving an order or a grant; or if the examination is subject to a valid collective agreement.

Why did the city pass this law?

Alderman Derek Green, sponsor of the bill, pointed out that the city’s laws need to be brought into line with the treatment of marijuana in Pennsylvania. Pennsylvania currently allows the use of medical marijuana but has not passed laws to protect workers from job tests if they have a valid medical marijuana card. Councilor Green considered this “common sense legislation” that would protect workers with valid health insurance and enable them to find and retain employment while enjoying the benefits of medical marijuana. Testimony at the legislature hearing also indicated that this legislation would have positive economic effects as people would not be excluded from jobs just for using marijuana outside of work.

Philadelphia is not the first jurisdiction to legislate like this. New York City City Council passed an amendment to its administrative law in 2019 with an essentially similar language. In addition, Atlanta, Washington, DC, Rochester, NY, and Richmond, VA prohibit pre-employment marijuana screenings for certain public sector employees. Nevada, which allows recreational marijuana use, prohibits both public and private employers from refusing to hire a potential employee based on positive marijuana screening, with similar exemptions for law enforcement and public safety positions.

Other jurisdictions with laws that legalize recreational marijuana use, including New York, New Jersey, and Maine, prohibit employers from taking adverse labor laws against workers solely for their off-work marijuana use. Although these states do not directly prohibit screening of marijuana before hiring, employers cannot reject applicants based on a positive test for marijuana unless federal law requires such a test. California legalized recreational marijuana five years ago. A bill is currently pending in the state legislature that would prohibit employers from discriminating against or taking adverse action on workers and applicants based on a positive marijuana test.

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

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.