New York Employment Law Update — May 2019

New York

New York City Bans Pre-Employment Marijuana Testing

On May 10, 2019, a New York City Charter Rule (Int. 1445-2019) was adopted, without the mayor’s signature, amending the city’s administrative code by prohibiting pre-employment drug testing for marijuana. Specifically, under the law, it is an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof (employer) to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (THC) or marijuana in his or her system as a condition of employment.

However, this prohibition does not apply to those applying to work:

  • As police officers or peace officers, or any law enforcement or investigative function.
  • As construction or demolition workers.
  • As commercial drivers.
  • In any position requiring the supervision or care of children, medical patients, or vulnerable persons.
  • In any position with the potential to significantly impact the health or safety of employees or members of the public.

Additionally, the law does not apply to drug testing required pursuant to:

  • Any regulation promulgated by the federal Department of Transportation that requires testing of a prospective employee.
  • Any contract entered into 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.
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security.
  • 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.

The New York City Human Rights Commission will create the rules for implementation of this law.

The law is effective May 10, 2020.

Read Int. 1445-2019

Voting Leave Poster

On April 19, 2019, the New York Department of Elections released the state’s mandatory voting leave poster. Every employer must conspicuously post this poster in the workplace no less than 10 working days before any Election Day. It must be located where it can be seen as employees come or go to their workplace and kept posted until the close of the polls on Election Day.

See the poster

NYCHRC Releases Guidance for Sexual Harassment Prevention Training Requirements

In April 2019, the New York City Human Rights Commission (NYCHRC) created a website to help employers implement the state’s sexual harassment prevention training requirements that took effect April 1, 2019. The website contains:

  • An overview of the law and employer responsibilities.
  • Online training.
  • Summary of the New York City Stop Sexual Harassment Act.
  • Fact sheets and poster.
  • Resources and references.
  • Frequently asked questions.
  • Reporting harassment portal.

Additionally, there are several notable FAQs that provide in-depth answers to issues that were unclear from the text of the act:

  • Deadline: Question 2 states that as of April 1, 2019, employers are required to train every employee each calendar year and that the deadline to train employees is December 31, 2019. This is significant because the prior deadline was reported to be April 1, 2020, one year after the act took effect. This April 1, 2020 date was reported because the provisions of the act did not provide a specific “train by” date; rather that the training must be provided annually and the act took effect April 1, 2019. The city has made an effort to clarify any reported inconsistencies and clearly state that employers must train all employees annually, “beginning with Calendar Year 2019, and every year thereafter” (see the city’s Overview page).
  • Covered employees: Question 8 states that the training requirement applies to any employees who work or will work in New York City for more than 80 hours in a calendar year and for at least 90 days. These employees must be trained, regardless of whether the employer is based in New York City. Moreover, if an employee is based elsewhere but regularly interacts with other employees in New York City, even if they are not physically present in the city, they should be trained. The act does not address training out-of-state employees who only interact with employees in the city. Employers should abide by the city’s guidance.
  • New hire: Question 15 states that employers should provide training to new staff as soon as possible after hire; however, according to the act, new employees are to be trained after 90 days of initial hire. Employers should abide by the city’s guidance and provide training as soon as possible.

Employers should regularly review all FAQs and city-provided material to ensure compliance.

See the website, the act, and FAQ page