New State, Local Laws Address Height, Weight, Marijuana and Noncompetes

Employment Law

State and local employment laws are changing around the country, from a new measure in New York City prohibiting discrimination based on height and weight to protections enacted in Washington for off-duty marijuana use to a ban on almost all noncompete agreements in Minnesota.

In New York City, Mayor Eric Adams signed into law Int. No. 209-A, which amended the NYC Human Rights Law to add an individual’s “actual or perceived” height and weight to the list of protected characteristics. The antidiscrimination and antiharassment mandate will take effect on November 22, 2023, with application to employees, applicants, interns and independent contractors.

The law contains carve-outs for employers where consideration of height or weight is required by federal, state or local law or regulation, as well as for employers that need to consider height or weight in employment decisions if the consideration is permitted for particular jobs or job categories according to regulations adopted by the NYC Commission on Human Rights.

In addition, in instances where an employer’s action is not required by law or regulation, or permitted by regulation, the law provides an affirmative defense for employers where the individual’s height or weight prevented the performance of essential job functions (and that no alternative action existed for the employer to take that would allow the person to perform the essential requirements of the job) or where consideration is reasonably necessary for the execution of an employer’s normal operations.

Similar measures are currently pending in Massachusetts and New Jersey, while Michigan, Washington and Washington, D.C., already prohibit weight discrimination.

Across the country, lawmakers in Washington enacted Senate Bill 5123, which was signed by Gov. Jay Inslee, prohibiting employers in the state from making hiring decisions based on preemployment testing for off-the-job cannabis use or test results showing nonpsychoactive cannabis metabolites in an applicant’s hair or their blood, urine or other bodily fluids.

Taking effect January 1, 2024, the new law permits employers to base initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.

The law also does not preempt state or federal laws requiring an applicant to be tested for controlled substances, and excludes applicants who are seeking positions requiring a federal background investigation or security clearance, certain public safety positions, and safety-sensitive positions that have been previously identified by the employer.

The law also excludes other types of controlled-substance testing, including post-accident testing or testing because of a suspicion of impairment or being under the influence. Nothing under the law affects an employer’s right or obligation to maintain a drug- and alcohol-free workplace.

A similar law is set to take effect in California, also on January 1, 2024.

Finally, Minnesota became the fourth state—joining California, North Dakota and Oklahoma—to ban employee noncompetes as of July 1.

The law does not affect noncompete agreements already in effect, nor does it make distinctions based on salary or position level.

Two general exceptions are provided in the law (S.F. No. 3035): (1) a noncompete that is agreed upon during the sale of a business which prohibits the seller of the business from carrying on a similar business within a reasonable geographic area and for a reasonable length of time, and (2) a noncompete reached in anticipation of the dissolution of a business that prohibits the parties from carrying on a similar business within a reasonable geographic area where the business has been transacted.

Why it matters

The new laws provide a reminder to employers about the many differences in employment regulations across the country, and a sense of what issues are trending in legislatures: banning or restricting noncompete agreements, protections for off-duty marijuana use, and bans on height and weight discrimination.



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