By: Gregg Zeff
On: February 3, 2022
Philadelphia enacted a new ordinance on January 1, 2022 that limits an employer’s ability to do pre-hiring drug testing for prospective employees.
What does the New Philadelphia Law Prohibit in Regard to Marijuana Testing?
The new Philadelphia ordinance is an interesting milestone in Philadelphia marijuana law. In short, the new law makes it unlawful for an employer (including employment agencies or labor organizations) to require prospective employees to submit marijuana testing as a condition of employment. The law is only limited to marijuana testing. Therefore, employers are still allowed to test prospective employees for other narcotics, and condition employment on the individual’s ability to pass those tests.
Why did Philadelphia Pass this Law?
This new ordinance follows the coattails of several other changes in marijuana law, specifically, the legalization of medical marijuana in Pennsylvania. Philadelphia lawmakers reasoned that people who either rely on medical marijuana for treatment, or have been prescribed medical marijuana products, may have a difficult time obtaining employment due to pre-employment marijuana drug testing. Councilmember Derek Green, who introduced the bill in 2021, stated that he wanted to make changes to Philadelphia marijuana law when he learned that individuals with autism spectrum disorder struggle to find employment because of medical marijuana use.
Does the Law Cover Drug Testing for Current Employees?
Unfortunately, the law is silent when it comes to whether or not employers can require testing on current employees. However, the fact that the new law does not specifically extend the testing prohibition to current employees is rather indicative that the law is not intended to cover current employees. Consequently, it is likely that this Philadelphia marijuana law does not protect current employees from marijuana testing, and employers are probably still able to require marijuana testing for current employees as a condition for employment. In other words, employees may still be subjected to disciplinary action if they arrive to work under the influence of marijuana or their marijuana use impacts their job performance. Furthermore, it also appears that once an individual is hired, an employer is able to enforce marijuana drug testing as a condition for continued employment.
What Instances are Exceptions to the Philadelphia Marijuana Law?
Though the new Philadelphia marijuana law is rather broad when it comes to pre-employment marijuana drug testing, there are four important exceptions.
The prohibition of subsection 9-5502(1) shall not apply to persons applying to work in the following jobs or professions:
- Police or law enforcement officers
- Careers that require the use of a commercial driver’s license
- Jobs or careers that consist of caring for children, medical patients, disabled individuals, or vulnerable individuals
- A position in which the employee could impact the health or safety of other employees or members of the public. Positions that fall under this category are determined by the Philadelphia Commission on Human Relations, the agency charged with enforcing the new Philadelphia marijuana law. Employers who wish to fall under this exception will need to appeal to this special commission and receive a ruling or determination that they may engage in pre-hiring marijuana drug testing.
Thus, any prospective employee that falls into one of these categories can be subjected to pre-employment marijuana testing and the prohibition against marijuana testing does not apply to employers in these fields.
What are the Exemptions to this Ordinance?
In addition to the exceptions listed above, the new Philadelphia marijuana law has several exemptions. The exemptions mainly affect employers who are directly impacted by federal regulations or special employment contracts. More specifically, the ordinance does not apply in the following instances:
- A federal or state statute, regulation, or order requires the employer to subject prospective employees to pre-hiring marijuana testing.
- A valid contract or grant between an employer and the federal government requires pre-hiring marijuana testing.
- A valid collective bargaining agreement specifically addresses or requires pre-employment drug testing of applicants.
In short, the exemptions to this ordinance clearly state that federal laws and valid contractual agreements take precedence over the new Philadelphia marijuana law.
Contact Zeff Law If an Employer Inappropriately Requested Marijuana Drug Testing
If you are subjected to pre-hiring marijuana testing and believe that you have missed an employment opportunity because of that test result, you may be entitled to compensation. The new Philadelphia marijuana law clearly prohibits employers from subjecting prospective employees to such testing except under very specific circumstances. The attorneys at Zeff Law Firm can review your claim and determine whether one of these specific exceptions or exemptions apply. If not, you may be entitled to compensation. Contact our firm today to discuss your case and your legal options today.