Ringing In The New Year: Philadelphia Prohibits Pre-Hire Marijuana Testing

Philadelphia’s “Prohibition on Testing for Marijuana as a Condition for Employment” takes effect on January 1, 2022.  The aptly named Ordinance requires that most employers rethink their pre-employment cannabis screening policies and act swiftly to remove THC from their testing panels in advance of the new year.

The Ordinance applies to employers in Philadelphia and states that 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 testing for the presence of marijuana in such prospective employee’s system as a condition of employment.” The Ordinance only affects pre-employment screening and does not address post-employment random or for-cause cannabis testing.

While most employers in the city will feel the impact of the Ordinance, the Ordinance identifies several exceptions that permit employers to continue pre-hire cannabis testing of candidates for the following occupations:  

• “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”
• “Any position in which the employee could significantly impact the health or safety of other employees or members of the public…” as identified by the Philadelphia Commission on Human Relations.

The Ordinance also does not apply to where:

• A federal or state statute, regulation, or order requires pre-hire drug screening;
• a condition of contracts or grants of financial assistance between an employer and the federal government is that drug screening is required; or
• a valid collective bargaining agreement explicitly addresses pre-employment drug screening.

Philadelphia is the third jurisdiction to ban pre-employment marijuana testing after New York City started this movement in 2020. Recently, the New York Department of Labor issued guidance that also bars employers from screening most workers for the use of cannabis. As this prohibition seems to mark a trend on the Eastern seaboard, employers across the United States are advised to engage their screening partners and review and revise their drug screening policies and processes to ensure compliance with the myriad of quickly evolving laws.