Philadelphia Ordinance Prohibits Pre-Employment Testing for Marijuana Use
Effective January 1, 2022, Philadelphia employers are prohibited from requiring job applicants to submit to pre-employment drug tests for marijuana use.
01.10.22
Under the ordinance, titled “Prohibition on Testing for Marijuana as a Condition for Employment,” it is an unlawful employment practice in the City of Philadelphia for “an employer, labor organization, employment agency or agent thereof” to require a prospective employee to submit to pre-employment marijuana testing as a condition of employment.[1] Notably, the ordinance does not impact an employer’s ability to drug test current employees for medical marijuana use, nor does it prohibit an employer from disciplining an employee for being under the influence of marijuana while working.
Also, the ordinance carves out enumerated exceptions for certain categories of positions, and permits pre-employment marijuana testing for: (a) police officers or other law enforcement positions; (b) any position requiring a commercial driver’s license; (c) any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals; and (d) any position in which the employee could impact significantly the health or safety of other employees or members of the public, as determined by the enforcement agency. Concerning (d), it appears that a prior determination is required by the Philadelphia Commission on Human Relations (PCHR). Thus, employers should consider waiting for the regulations to be released by the PCHR before relying on this exception.
Moreover, the ordinance does not apply when drug testing is required pursuant to: (a) a federal or state statute, regulation or order requiring drug testing of prospective employees for purposes of safety or security; (b) a contract between the federal government or 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; and (c) an applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
Philadelphia employers should immediately cease conducting pre-employment testing for marijuana use and review their workplace policies and remove any references to pre-employment drug testing for marijuana use, unless the policy specifically applies to a position covered by one of the ordinance’s enumerated exceptions.
Co-authors Lee Moylan, chair and Stephanie Wolbransky, associate are members of the labor and employment practice at Klehr Harrison.
[1] Phila. Code §9-5500, et seq.