Effective January 1, 2022, Phila. Code § 9-5500 now prohibits Philadelphia employers from requiring job applicants to submit to pre-employment drug tests for marijuana use. Specifically, the ordinance makes it an unlawful employment practice for an employer, labor organization, or employment agency (or agent thereof) to require prospective employees to submit to testing for the presence of marijuana as a condition of employment.

Several categories of applicants are exempt from the law, including: (i) police officers and other law enforcement positions; (ii) positions requiring a commercial driver’s license; (iii) positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals; and (iv) positions 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.

In addition, the law does not apply where drug testing is required pursuant to:

  • any federal or state law, regulation, or order that requires drug testing of prospective employees for “purposes of safety or security;”
  • any contract between the federal government and 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; or
  • any applicants whose prospective employer is a party to a valid collective bargaining agreement that “specifically addresses the pre-employment drug testing of applicants.”

The ordinance authorizes the Philadelphia Commission on Human Relations to promulgate implementing regulations, though further guidance has not yet been issued. Philadelphia is not the first city to enact pre-employment drug testing restrictions, and will likely not be the last. As of May of 2020, New York City prohibits most City employers from requiring prospective employees to submit to marijuana drug testing as a prerequisite for employment. In a similar vein, Nevada employers are prohibited from failing or refusing to hire a prospective employee because the individual submitted to a pre-hire drug screening and the test indicated the presence of marijuana.

We will continue to report on developments relating to this ordinance, in addition to developments relating to pre-employment drug restrictions across other cities and states. In the meantime, employers in Philadelphia should review their hiring processes to ensure compliance with these new requirements.

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Photo of Steven Hurd Steven Hurd

Steve has extensive trial and appellate experience, in both federal and state courts focusing on claims of alleged individual and class discrimination, sexual harassment, wage and hour violations, FINRA, whistleblowing and retaliation, defamation, fraud, breach of contract, wrongful discharge and other statutory and…

Steve has extensive trial and appellate experience, in both federal and state courts focusing on claims of alleged individual and class discrimination, sexual harassment, wage and hour violations, FINRA, whistleblowing and retaliation, defamation, fraud, breach of contract, wrongful discharge and other statutory and common law claims. Steve also advises clients on employment litigation avoidance, litigation strategy and alternative forms of dispute resolution. Steve also handles matters involving drafting, enforcing, and defending restrictive covenants, and protecting trade secrets.

Steve is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration Practice Group and Media & Entertainment Industry Group, and is a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steve helps his clients stay in compliance with the ever-changing employment regulations with respect to FLSA and state law wage and hour requirements by providing advice and conducting comprehensive audits. Steve conducts investigations pertaining to reductions-in-force and individual employee terminations, and claims of gender, race, national origin, and disability discrimination.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Claudia Khoury-Yacoub Claudia Khoury-Yacoub

Claudia Khoury-Yacoub is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group and Employment Counseling & Training Group. She is currently on client secondment.

Claudia has assisted in litigation and investigation matters related to…

Claudia Khoury-Yacoub is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group and Employment Counseling & Training Group. She is currently on client secondment.

Claudia has assisted in litigation and investigation matters related to workplace harassment, discrimination and retaliation. In addition to her litigation practice, Claudia assists employers in counseling matters, developing policies and handbooks and preparing training programs for employees.

Claudia earned her J.D. from Harvard Law School. While at Harvard, Claudia worked as a student attorney in several clinical programs, assisting in trial preparation related to child abuse and human trafficking clams in the Child Advocacy Clinic, representing clients seeking asylum in the Harvard Immigration and Refugee Clinical Program and arguing motions before the Waltham District Court in the Criminal Prosecution Clinic.