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.
No New York Drug Testing Laws
Although many states have passed laws
regulating or restricting an employer’s right to require drug testing, New York
is not one of them. The state of New York has no law addressing drug testing 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
Because New York state law doesn’t
put any limits on workplace drug testing, employees who believe their test was
illegal will have to rely on other legal theories. For example, an employer may
run into legal trouble based on who is tested or how the test is conducted.
Here are some examples:
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 (unless the drug is medical marijuana).
discrimination claims. An employer who singles out certain groups of employees
– for example, by race, age, or gender– for drug testing could face a
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.
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.