What to know about Philadelphia’s ban on pre-hire marijuana testing
A new city law bars many employers from testing job applicants for cannabis use, but there are several exemptions to the ordinance.
If you’re looking for a job in Philadelphia, you may no longer need to pass a drug test for marijuana. A new city law bars many employers from testing job applicants for cannabis use. It took effect Jan. 1.
But there are several exemptions to the ordinance and questions about enforcement. If you’re a job applicant or hiring manager, here’s what you need to know about the city’s ban on pre-hire marijuana testing.
Why did the city pass this law?
Medical marijuana is legal in Pennsylvania, but some people who are prescribed cannabis have a hard time landing jobs because of drug screenings. City Councilmember Derek Green introduced the bill after specifically learning of people with autism spectrum disorder who struggled to find work due to their medical marijuana use.
“It just seemed to be contradictory that the Commonwealth of Pennsylvania is allowing this product to be used for individuals to help improve their quality of life,” said Green, a Democrat. “But then that’s also restricting their ability to improve their life by getting gainful employment.”
In April, Council approved the bill in a 15-1 vote, with Republican David Oh casting the lone opposing vote. Mayor Jim Kenney signed the bill into law six days later.
Can my current employer still test me for marijuana use?
Yes. The ordinance applies only to pre-employment drug screenings. The law does not require employers to change their existing workplace drug policies, so your current employer can still test you for cannabis use.
“What this says is they can’t ask you to perform a drug test, which is a huge look at your health and at your bodily fluids, just to apply for a job,” said Chris Goldstein, regional organizer for the National Organization for the Reform of Marijuana Laws.
Can employers still test me for other drugs?
Yes. The law applies only to marijuana testing, so you may still need to take a drug test for other substances before you’re hired.
Are any employees or employers exempt from the law?
Yes. If you work in law enforcement, need a commercial driver’s license, or supervise children, medical patients, people with disabilities, or other vulnerable populations, an employer can still test you for marijuana use as a condition of employment.
There’s also a broader category of “any position in which the employee could significantly impact the health or safety of other employees or members of the public.” A city agency would determine whether a job meets that criteria, according to the ordinance.
That language creates some gray area that will likely be tested in court, said William Roark, who chairs the medical marijuana practice at the Hamburg, Rubin, Mullin, Maxwell & Lupin law firm in Lansdale. For example, utility workers who drive trucks and repair gas leaks “absolutely” fall into that health or safety category, Roark said. But it’s less clear whether a utility can test job applicants who want to answer the phones when customers call to report gas leaks, he added.
“There very likely may be some positions where an employer is going to say, ‘I think this deals with public health and safety, I want to screen my employees,’ and an employee is going to challenge that,” he said.
Are there other exemptions?
Yes. The law does not apply to employers with a collective bargaining agreement that specifically addresses pre-employment drug testing. Jobs that require drug screenings under federal or state law for safety or security are also exempt. Employers that are required to conduct drug tests to receive federal contracts or grants are carved out, too.
Who will enforce the law?
The Philadelphia Commission on Human Relations will be the enforcement agency, said Kevin Lessard, spokesman for the Mayor’s Office. Prospective employees can report violations to the commission. If a complaint is filed, an employer can argue it is exempt from the law. If you have questions for the commission, you can email email@example.com.
Can my employer be fined for testing job candidates for marijuana?
Yes. The law does not specify penalties, but it falls under a section of Philadelphia code that regulates businesses, Green said. Under that code, first-time offenders can face fines of $150 to $300, with stiffer penalties for repeat offenders, he said.
The Human Relations Commission may order violators to pay remedies, including compensatory damages, punitive damages up to $2,000 per violation, and attorneys’ fees, Lessard added.
Are New Jersey or other Pennsylvania employers affected?
Employers can still test prospective employees for marijuana in Pennsylvania and New Jersey, which do not have such bans, said Ryan Allen Hancock, an employment lawyer for the Philadelphia-based Willig, Williams & Davidson firm. Neither state requires employers to test for marijuana use, though tests may be required to obtain certain professional licenses, Hancock added.
“The more that we see the legalization of marijuana, either through recreational or medical, I imagine that more and more municipalities, cities, and states will reevaluate their hiring policies,” Hancock said.
In New Jersey, which legalized recreational marijuana, employers cannot refuse to hire, fire, or discipline an employee or applicant simply because the person tested positive for marijuana, said Louis L. Chodoff of Ballard Spahr. Still, state law explicitly recognizes an employer’s right to maintain a drug-free workplace and enforce policies prohibiting the use of marijuana during work hours, he added.
Editor’s note: This story was updated to add enforcement information from the Mayor’s Office.
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