Philadelphia joins a small but growing list of jurisdictions that are enacting similar laws pertaining to pre-employment drug testing and marijuana, including Nevada and New York City. While the law will apply to many employers in the Philadelphia region, certain positions are excluded from the prohibition including:

• Police officers or other law enforcement positions;
• Any position requiring a commercial driver's license;
• Any position requiring the supervision of children, medical patients or other vulnerable populations; and
• Any position that could significantly impact the health or safety of other employees or members of the public, as identified by the city.

Additionally, this restriction does not apply when:

• Federal or state regulations require drug testing of prospective employees for purposes of safety or security;
• The grant of financial assistance from the federal government to an employer requires drug testing of prospective employees as a condition of receiving the contract or grant; or
• An employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

It is important to note that the law does not prohibit an employer from disciplining an employee for workplace impairment resulting from marijuana use or use of marijuana in the workplace. Furthermore, the law is not applicable for situations in which testing is required by state or federal law, a contract or grant for financial assistance between the employer and the federal government and/or a valid collective bargaining agreement.

Employers should begin internally reviewing protocols on drug screening to assess what adjustments are warranted. Items to consider include: language in job postings, documents associated with applications, and interview processes. Coordinating with legal counsel to ensure compliance with all documentation, policies and workflows pertaining to this law is also recommended.

Posted: May 17, 2021