Can an Employer in New York Test Employees For Drugs?

New York has no law addressing drug testing in private employment and so, drug testing is not prohibited or restricted, unless it violates other legal provisions (such anti-discrimination rules). An employer may enforce an established substance abuse or alcohol program or workplace policy. 9 N.Y.C.R.R. § 466.11(h)(6)(ii), N.Y. City Human Rights Law, N.Y. City Admin. Code § 8-107(14)(c).

If an employer wishes to drug test, it must adopt a policy (we can help with developing one). The policy can require tests at random, without suspicion, and without advance notice of when the test will take place. An employer may lawfully fire employees who test positive for illegal drugs or who refuse to submit to a random drug test (provided the employer has such a written policy which is communicated to all employees) which lists consequences such as termination. Also, if an employee is fired for a positive test result for illegal drugs or for refusing to undergo a random drug test, the employee’s positive test result or refusal to submit to the random drug test is “misconduct” which, if it is the basis for the employee’s discharge, disqualifies the employee from receiving unemployment insurance benefits (again provided the employer has an established, communicated drug testing policy),

The NY Human Rights Law prohibits employment discrimination on the basis of certain classifications, including disability. Some states address alcohol or drug use in the disability category; New York does not. The Human Rights Law covers employers with four or more employees (NY Exec. Law Art. 15 Sec. 290 et seq.).

Americans with Disabilities Act (ADA) considerations. Alcohol abuse is considered a disability under the federal ADA. Employers that are covered by both New York law and the ADA must comply with the ADA requirements and treat alcohol abuse as a disability. The ADA does not consider current use of illegal drugs to be a disability. The ADA covers employers with 15 or more employees. There are more details on substance abuse and the ADA.