Pre-employment Marijuana Screens Will Be Outlawed for Many in Philadelphia

​The Philadelphia City Council approved a measure April 22 prohibiting most employers in the city from testing new hires for marijuana use.

The bill makes it illegal for companies "to require a prospective employee to submit to testing for the presence of marijuana" before hiring them.

But the legislation exempts many types of jobs, including law enforcement, those who need a commercial driver's license, health care workers, and "any position in which the employee could significantly impact the health or safety of other employees or members of the public." Employers with unionized workforces could still conduct testing for marijuana if employees agreed to testing in their collective bargaining contracts.

Philadelphia Mayor Jim Kenney is expected to sign the bill into law, which would take effect Jan. 1, 2022.

"Practically speaking, the Philadelphia ordinance might not affect many businesses as employers have gradually moved away from pre-employment testing and the exemptions to the ordinance cover a number of employers and industries where testing is required and standard," said Louis Chodoff, an attorney in the Mount Laurel, N.J., office of Ballard Spahr. "However, employers would be wise to review their drug-testing policies and protocols to ensure compliance with this ordinance."

Philadelphia will join a growing list of cities and states that provide workplace protections for cannabis users. Atlanta, New York City and Washington, D.C., have recently banned pre-employment marijuana screening for most jobs, and Maine became the first state to block most employers from conducting marijuana drug screening in 2018.

"Legislation relating to medical and recreational marijuana by states and municipalities presents evolving challenges for employers," Chodoff said. "The ordinance was introduced on the heels of legislation in several states, including New Jersey, that legalized recreational marijuana in 2020. In 2015, Pennsylvania passed the Medical Marijuana Act legalizing medical marijuana, but the state has not yet legalized recreational marijuana—though Pennsylvania Governor Tom Wolf has repeatedly urged legislators to legalize adult-use marijuana in the state."

Pennsylvania is one of 36 states with legalized medical marijuana use, and Philadelphia has decriminalized possession of small amounts of the drug.

Pre-employment testing for marijuana detects whether someone has consumed marijuana in the recent past, but not whether they are currently under the influence. Marijuana can be detected in a drug test weeks after it is consumed.

"There's no evidence to support the claim that those who consume cannabis in the privacy of their own home away from the job pose a unique workforce safety threat or risk," said Paul Armentano, deputy director of marijuana law reform group NORML, based in Washington, D.C.

"Suspicionless marijuana testing in the workplace, such as pre-employment drug screening, is not now, nor has it ever been, an evidence-based policy. In many places, the marijuana laws have changed. It is time for workplace policies to adapt to this new reality and to cease punishing employees for activities they engage in during their off-hours that pose no workplace safety threat."

Workers in the U.S. tested positive for drug use in 2019 at the highest rate since 2003, according to annual drug-testing results compiled by Quest Diagnostics, a laboratory based in Secaucus, N.J. Marijuana positivity in the U.S. workforce increased nearly 11 percent in urine testing from 2018 to 2019 and 29 percent since 2015.