Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 22, 2021, the Philadelphia City Council passed a new ordinance prohibiting employers from conducting pre-hire marijuana testing, which Mayor Jim Kenney signed into law on April 28, 2021. The new ordinance will take effect on January 1, 2022 and make Philadelphia the third jurisdiction in the United States to limit the ability of private employers to conduct marijuana testing of prospective employees.1
The ordinance makes it an unlawful employment practice for employers, labor organizations, or employment agencies to require prospective employees to undergo pre-hire marijuana screening as a condition of employment in most jobs. The new ordinance is specifically focused on prospective employees and does not limit an employer’s ability to conduct marijuana screens on current employees.
There are, however, exceptions to the blanket prohibition. Employers can conduct pre-hire marijuana drug tests if the applicant is seeking:
- Any position in law enforcement;
- Any position requiring a commercial driver’s license;
- Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals; and
- Any position in which the employee could significantly impact the health or safety of other employees or members of the public.
The ordinance does not address how to determine which positions could impact the health or safety of other employees or members of the public. According to the ordinance, forthcoming regulations should provide guidance on which positions fall into that category. If Philadelphia follows the lead of New York City, which adopted a similar ordinance and regulations in 2020, certain types of roles and job duties – such as regular driving – may be identified as significantly impacting the health or safety of others.
The ordinance also does not apply if drug testing is required pursuant to: (1) a federal or state statute, regulation, or order or (2) a federal government contract or grant. Additionally, if an employer is a party to a collective bargaining agreement that covers pre-employment drug testing, then the ordinance does not apply.
At this point, it is unclear what positions employers can designate as significantly impacting the health and safety of other employees or members of the public. Employers should be on the lookout for the forthcoming regulations, which should provide more clarity. Nevertheless, in light of this ordinance, Philadelphia employers should review, and make necessary changes to, their drug testing policies and procedures before the January 1, 2022 effective date.
1 Nevada and New York City also limit pre-hire marijuana tests. The New York City ordinance has been rendered irrelevant by recent action by New York State to legalize and protect the recreational use of marijuana.