On Jan. 1, 2022, Philadelphia's ordinance, titled, "Prohibition on Testing for Marijuana as a Condition for Employment," Phila. Code § 9-5500, et seq., will take effect. The ordinance—which was passed by the Philadelphia City Council on April 22, 2021 and signed into law by Mayor Jim Kenney on April 28, 2021—states that in the city of Philadelphia it "shall be an unlawful employment practice 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.
The ordinance does not address marijuana testing with respect to current employees, and it does not prohibit an employer from disciplining an employee for being under the influence of marijuana while working or possessing marijuana in the workplace.
While the ordinance's ban will affect many Philadelphia employers, the ordinance details several enumerated exceptions to the prohibition on pre-hire marijuana testing. For example, the ordinance excludes certain categories of positions, permitting continued pre-employment marijuana testing for the following:
- "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, [or] disabled or other vulnerable individuals."
In addition, the ban on pre-employment marijuana testing does not apply to "[a]ny 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]." As this fourth exception appears to require a prior determination by the enforcement agency—the Philadelphia Commission on Human Relations—Philadelphia employers may want to wait for and review the regulations prior to relying upon this exception.
Finally, the ordinance states that the ban on pre-hire marijuana testing does not apply where:
- The employer is required to test for marijuana pursuant to a federal or state statute, regulation, or order.
- Drug testing is required by a contract or grant between an employer and the federal government as a condition of receiving said contract or grant.
- A valid collective bargaining agreement specifically addresses pre-employment drug testing of applicants.
As the effective date of the ordinance is fast approaching, employers may want to ensure that their talent acquisition and human resources personnel responsible for hiring in Philadelphia are aware of the ordinance's restrictions on pre-employment testing for marijuana in advance of Jan. 1, 2022. Philadelphia employers may also want to conduct reviews of pre-hire documents and materials to ensure that references to pre-employment marijuana testing have been removed, unless the materials specifically relate to a position covered by one of the ordinance's delineated exceptions.
Donald D. Gamburg and Jessica M. Bocchinfuso are attorneys with Ogletree Deakins in Philadelphia. © 2021 Ogletree Deakins. All rights reserved. Reposted with permission.