In the state of New York, employers are allowed to test employees for illegal drug use under both local New York and federal laws. In fact, in New York, there is almost no limitation on a private employer’s right to adopt drug and alcohol testing policies for their employees.
This means that employee drug testing laws in New York generally allow for an employer to ask or require their employees to take drug tests, so long as the test itself doesn’t conflict with any other state or federal law.
It is important to note that employers in New York cannot violate federal or state protections when drafting their alcohol and drug testing policies or engaging in random drug testing of their employees. The most important federal and state protection regarding employer policies is that there must be no employment discrimination associated with the drug testing that the employer is utilizing.
In other words, an employer’s drug testing policies must be non-discriminatory and must not adversely interfere with an employee’s privacy rights. For example, it is common policy for an employer to drug test a prospective employee, especially if they are classified as a drug free workplace.
In New York, employers with a drug-free workplace program are typically required to test applicants who have received a conditional offer of employment. Importantly, the drug testing requirement should be included in any job ads or postings. Prospective employees are then required to pass the drug test before beginning their position with the employer.
Drug testing may also be mandated for specific types of employees, such as government employee drug testing for employees that are subject to the United States Department of Transportation mandatory testing guidelines.
Additionally, government jobs that affect the public at large generally require that employers adopt drug-free workplace policies and conduct mandated and random drug testing. Further, any individual whose employment may affect public safety, such as a bus driver, train operator, or airplane pilot, must also generally undergo random drug testing throughout their employment.
It is also important to note that an employee and employer may choose to execute an employment contract that includes drug testing provisions within the employment contract itself. Both the employer and employee would then be subject to the procedures that are laid out in the employment contract.
As mentioned above, companies may also freely enact drug testing policies and procedures within the workplace. In general, a company-wide drug testing policy and procedure manual should address drug testing policy questions including:
- What is considered to be a violation of the company’s drug and alcohol policy?
- What employees are covered by the company’s drug and alcohol policy?
- What disciplinary measures may result from violations of the drug testing policy?
- Will the company allow for employee rehabilitation in case of a violation of the policy?
Company drug testing policies should always be provided in writing to all employees, and the employees must be given an opportunity to sign the policy acknowledging that they have received a copy of the policy. In general, a drug testing policy will be included in an employee manual, which is provided to an employee on their first day or prior to their first day of work.
It is important to note that, in New York, if an employee chooses to not sign the drug testing policy, it is legal for an employer to terminate their employment. This is mostly due to the fact that New York is an employment-at-will state.
Employment-at-will means that employment that is not otherwise secured with an employment contract may be terminated by either the employer or the employee at any point in time. It is important to note that the termination of employment by either party may be for any reason or for no reason at all, so long as the reason is not illegal.
What Are the Rules for Testing Current Employees?
Once again, New York employers are generally permitted to require that both prospective and current employees undergo drug tests. However, for an employer drug testing policy to be considered valid, an employer must be fair in their policies of drug testing all applicants and employees in similar positions.
This means that an employee drug testing policy can not violate state or federal law, such as singling out a single employee or applicant based on a protected characteristic, such as:
- Race;
- Gender;
- Nationality;
- Origin;
- Sexual orientation;
- Disability.
In New York, drug testing for employees is primarily governed by state laws. For example, employers in New York can participate in the “Drug-Free Workplace program,” which allows them to qualify for a 5% discount on workers’ compensation premiums. Because of this discount, many employers choose to participate in a drug-free workplace program.
As far as the types of testing that an employer may utilize in New York, all of the following tests are commonly utilized in the state:
- Random Drug Testing: Employers in New York may conduct random drug tests, but employees must be aware of their intentions, and the tests cannot violate state or federal laws as outlined above;
- Rebuttable Presumption: If there’s a reason for an employer to suspect drug use by an employee, such as observable behavior, abnormal conduct, or reports of drug use, then the employers can drug test that employee;
- Routine Medical Examination: Employers can also include drug testing as part of routine medical exams for fitness for duty of a job position.
It is important to note that in New York, employers must provide written notice at least 60 days in advance before implementing drug screening. Further, employees also have five days to contest or explain the results of a failed drug test.
Can I Refuse a Drug Test at Work?
In short, yes, you can refuse a drug test at work in New York. However, once again, your employer may then terminate you for doing so. Importantly, there are situations in which you may legally refuse a drug test or decline to take a drug test and be protected from being terminated.
For example, if you have been diagnosed with a medical condition that falls under the Americans with Disabilities Act (“ADA”), then you may refuse to take a drug test if the drug test would go against the reasonable accommodations provision under that federal law.
Additionally, you may refuse to take a drug test if it violates a state law. For instance, if you believe and can prove that the reason for the drug test is discriminatory, then you may refuse to take the drug test. Then, if your employer terminates you based on your refusal, you can file a civil lawsuit against them and seek damages for that wrongful termination.
As can be seen, a refusal to take an employer drug test must usually be based on the refusal to submit to a discriminatory policy or based on a state or federal law in order for you to be protected against negative employer actions, such as termination.
What Are the Consequences of Refusing to Take a Drug Test?
As mentioned above, the most obvious consequence of refusing to take a drug test is that your employment may be terminated for the refusal. Further, in the absence of company policies or an employment contract that contains drug testing policies, employers in New York are allowed to terminate you from your position for any reason or no reason at all since New York is an employment-at-will state.
It is important to note that failing a drug test can have almost identical consequences to refusing to take a drug test. A prospective employee will not likely be offered employment, and a current employee may be terminated for violating the terms of their employment contract or company drug testing policies.
It is also important to note that employees who are terminated for failing or refusing to take a mandatory drug test will also typically lose their employment benefits. This means that the employee could potentially forfeit their health insurance benefits provided through their employer, as well as be ineligible for unemployment benefits.
Are There Any Exceptions?
Once again, there are exceptions for having to take a mandatory drug test. Examples of common situations in which you can refuse to take a mandatory drug test and not be terminated or receive another negative action by your employer for doing so include:
- When you are able to demonstrate that your employer’s request for you to take a mandatory drug test is based on discriminatory reasons that would amount to workplace discrimination or be considered a “selective drug testing” policy;
- When you are able to demonstrate that you did not actually submit to the drug testing, but your employer performed drug testing on you without your approval or knowledge.
- For example, if your employee collects a sample of your hair without your knowledge or approval and then submits that for hair follicle drug testing, that will be considered a complete invasion of your privacy and illegal;
- When you can demonstrate that you have a disability that is protected by the ADA, and your employer has failed to comply with the reasonable accommodations provisions in the ADA.
Importantly, a local attorney in New York will be familiar with the most up-to-date state and federal laws regarding drug testing, as well as the laws regarding medicinal and recreational drug use.
Do I Need an Attorney if I Refuse to Take a Drug Test?
You may have been selected to take a drug test for prospective employment or are being asked to submit to a drug test as a current employee. In that case, it is in your best interests to consult a New York discrimination lawyer as soon as possible. This is especially true if you suspect that the drug test is discriminatory or being performed for an illegal reason.
LegalMatch can help you in locating an experienced New York discrimination attorney near you and set up a consultation with them. At your consultation, the attorney can help analyze your case and help you determine if you have a solid legal foundation for refusing a drug test or for suing your employer for wrongful termination based on a drug test.
An attorney will then also be able to provide you with your best course of legal action and answer any questions you may have. Finally, if it is necessary to bring a civil lawsuit against your employer for damages or reinstatement of your job on your behalf, an attorney can assist you with filing that lawsuit, and represent you in court, as needed.
