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Philadelphia has banned pre-hire marijuana testing for many employers: What to know

Christian Hetrick, The Philadelphia Inquirer on

Published in Business News

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, Pennsylvania. 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.

Can an 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.

Who will enforce the law?

It's still unclear. The law does not specify which city agency will enforce the law, and a spokesperson for the mayor's office did not immediately respond to a request for comment. Green said he believes that it will likely be the city's Labor Department, which typically resolves labor disputes and enforces labor law.

Are New Jersey or other Pennsylvania employers affected?

No. The ordinance applies only to employers in Philadelphia, one of just a handful of jurisdictions with a similar ban, including New York and Nevada.

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.

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