For states that have legalized some form of cannabis use, drug testing policies for employees and workplaces have been a constant source of controversy. Because THC, the main psychoactive constituent of cannabis, can linger in the body long after its effects have worn off, employees can test positive on a drug screening for legal, off-the-clock activity. And with many employers adopting “no tolerance” workplace drug policies, workers have faced sanctions and termination for testing positive for THC, despite showing no indication of drug-impairment on the job.
Hoping to get ahead of the issue before the question of testing employees for legal substances becomes an actual problem, New York City Council’s Progressive Caucus is introducing a bill to bar employers from testing job applicants for THC.
Councilman Jumaane Williams’ bill aims to end workplace drug tests for THC as a condition of employment. Or at least, for most jobs. Williams’ bill would not apply to safety-sensitive jobs like law enforcement, driving or operating heavy machinery, or anyone working under state or federal contracts. The bill’s carve out is similar to policies recently adopted for public transit workers in Canada.
For everyone else, however, Williams’ bill would end the practice of testing potential employees for THC. With New York moving quickly toward adult-use legalization, Williams says “it doesn’t make sense that this would be something that would prevent someone from getting gainful employment.”
And Williams is correct. It doesn’t make much sense. The presence of THC in a person’s system can indicate if a person is under the influence of cannabis. But it can also be an indication merely of the fact that the person consumed cannabis at some point in the past. In short, testing positive has no definite relation to impairment or a person’s ability to perform their job safely. “If you ingest weed in whatever manner a month ago, I’m not sure how that prevents you from doing your job now,” Williams told NY Daily News.
Councilman Williams isn’t the only member of City Council’s Progressive Caucus to introduce bills to eliminate tests for THC. Councilman Donovan Richards, who also heads the Council’s Public Safety Committee, sees an end to cannabis tests as a way to help reduce the city’s prison population. To that end, Richards will soon propose a bill to stop testing people on probation for THC. “While we’re working to decrease the population in Rikers, we should be finding reasons to keep people out of the system, not more hurdles to trip them up and send them back,” Richards said. Richards’ proposal already has the backing of several ex-probation officers and a former district court judge.
A third bill takes aim at a little-known consequence of testing for THC: interventions by child protective services. When a person uses a public hospital in the city, they are very frequently screened for illicit substances. And if a parent tests positive for THC, public hospitals alert the Administration for Children’s Services (ACS). From there, ACS can pass the information on to the NYPD and conduct their own investigations. These investigations can lead to parents losing custody of their children, just for testing positive for THC.
Councilman Antonio Reynoso wants to know how often that happens. His bill would require the city to keep data on the number of ACS investigations initiated due to a hospital alerting the agency about a positive drug test. That data wold include information about the income, race, gender, age and ethnicity of patients and the specific drug the test detected. It would also require the city to count how many times ACS referred data to the NYPD.
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