Philadelphia's Ban On Pre-Employment Marijuana Testing

On January 1, 2022, a new Philadelphia ordinance took effect. The rule was passed by the Philadelphia City Council on April 22, 2021, and signed into law by Mayor Jim Kenney on April 28, 2021. It is titled "Prohibition on Testing for Marijuana as a Condition for Employment,"  Phila. Code § 9-5500, et seq.

Who Does the Ordinance Effect?

The ordinance states that it is unlawful for any Philadelphia "employer, labor organization, employment agency or agent" to require prospective employees to conduct a marijuana test as a condition of employment. However, the ordinance does not mention marijuana testing requirements for current employees. As a result, this does not prohibit employers from disciplining an employee for being under the influence of marijuana or possessing marijuana while in the workplace. 

Exceptions to the Ordinance 

There are several exceptions to the new ordinance pertaining to pre-employment marijuana testing. Specifically, the prohibition does not apply to individuals applying for work in the following positions or professions:

• Police officer or other law enforcement positions;
• Any position requiring a commercial driver's license;
• Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
• Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance.

The prohibition also does not apply to drug testing required pursuant to: 

• Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
• Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
• Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants

With the new ordinance already in effect, Philadelphia employers should consider reviewing their pre-employment drug screening process and policies, if not already done so. 

States with Similar Drug Testing Laws

New York, Nevada, and Washington, D.C. are currently the only other states and district with similar pre-employment marijuana testing restrictions. 

New York: 

Pre-employment marijuana testing on prospective employees is considered unlawful. However, applicants applying for the following positions can still be subject to testing:

• Construction workers
• Police officers
• Commercial drivers
• Teachers, teachers’ aides, and daycare center employees
• Positions involving supervision or care of patients in a medical, nursing home, or group care facility
• Any position that has the potential to significantly impact the health and/or safety of employees or members of the public

Applicants may also be tested for marijuana if such testing is required by the U.S. Department of Transportation, federal contracts or grants, federal or state statutes, or collective bargaining agreements.

Nevada:

Prohibits employers from taking adverse action against applicants who test positive for marijuana. However, the law does not apply to applicants applying for safety-sensitive positions and public motor vehicle drivers. 

Washington, D.C.

Prohibits employers from testing for marijuana until a conditional job offer has been made, unless otherwise required by law.

As states and cities continue to pass legislation regarding marijuana testing, it is important to keep your workplace drug testing policy updated. Subscribe to our blog to receive timely updates as these changes continue. 

We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.

How Orange Tree Can Help

Orange Tree provides various pre-employment drug screening options and up-to-date information on the current legal landscape. We want you to ensure your pre-employment drug screening process is compliant with the drug testing laws in your region. 

Schedule a call to learn more about how Orange Tree can help with your pre-employment drug  screening process.