Workplace Drug Testing In New York

Has your New York employer or prospective employer asked you to take a drug test? Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn't otherwise require or prohibit drug tests.

For the most part, state and local laws determine whether an employer may test employees and applicants for drugs.

New York Law Prohibits Testing Employees for Marijuana

In 2021, New York became the first state in the country to prohibit employers from testing applicants and employees for marijuana, except in very limited circumstances.

Although cannabis is legal for both medical and recreational purposes in New York, employers are permitted to take disciplinary action against employees who use or are under the influence of drugs at work. In practice, however, it is difficult for employers to prove an employee's on-duty marijuana use without a drug test.

According to the New York State Department of Labor, an employer must show that a particular worker "manifests specific articulable symptoms of impairment" before discipline can be imposed.

New York Workplace Testing Laws for Drugs Other Than Marijuana

New York has no law addressing testing for drugs other than marijuana in private employment. This means that drug testing is not prohibited or restricted, unless it violates other legal provisions (such as a law prohibiting discrimination; see below).

Legal Claims for Drug Testing in New York

As we've already seen, employers are prohibited from testing job applicants and employees for the presence of marijuana. Employers can also run into legal trouble if they conduct tests for other drugs in a manner that violates the law. Here are some examples:

• Disability discrimination. The Americans with Disabilities Act (ACA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications can result in a positive result on a drug test, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
• Other discrimination claims. An employer who singles out certain groups of employees—for example, by race, age, or gender—for drug testing could face a discrimination claim.
• Invasion of privacy. Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation, depending on the circumstances.
• Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive result, if the employer acts in bad faith and knew (or should have known) that the result was incorrect.

Contact an Employment Attorney

If your New York employer has illegally tested you for marijuana or conducted another test in an unlawful manner, contact an experienced employment attorney to discuss your legal options.