Many employers test their employees for drug use. Some test only during the hiring process. Others require drug testing for existing employees on either a periodic or occasional basis. This post doesn’t weigh in on whether your organization should drug test employees. But it provides an overview of some of the legal issues involved.

Employee Rights Under New York Law

New York’s Labor Law protects employees’ legal use of “consumable products” before and after work, as long as the employee is off the employer’s premises and is not using their employer’s equipment or other property.

This means that, with a few possible exceptions, New York employees have the right to smoke cigarettes and drink alcohol outside of work. Employers usually cannot discipline or decline to hire employees for engaging in these activities.

However, the law does not prohibit employers from drug testing or disciplining employees who use illegal drugs, even if they only do so while off duty.

Medical Marijuana

New York’s legalization of medical marijuana adds one further caveat for employers.

The Compassionate Care Act permits New York residents (and individuals receiving treatment in the state) with a qualifying “serious condition” to obtain marijuana from licensed dispensaries for medicinal purposes. As of April 24, 2018, there were 52,435 certified medical marijuana patients in New York. That’s only about one-quarter of one percent of the total population of New York State.

Those certified patients do receive some job protections. However, the scope of those protections remains somewhat murky. Among other factors, the law does not require employers to violate federal law or federal contracts. Since marijuana remains an illegal drug under federal law even for New York certified patients, there may be situations where employers could discipline employees for testing positive for marijuana use.

Moreover, New York law does not give anyone, even if certified as a medical marijuana patient, the right to smoke marijuana, use it in a public place, or be “impaired” at work. Unfortunately, drug testing typically cannot measure impairment per se. Instead, it measures the presence of a drug in one’s body. Thus, a drug test alone may not conclusively establish that a certified patient has misused marijuana.

ADA Considerations

The Americans with Disabilities Act restricts employers’ medical inquiries and examinations of employees. Drug and alcohol testing are medical examinations, which usually must be job-related and consistent with business necessity. However, the ADA does not cover testing for illegal drugs.

Alcohol is not illegal, so employers must have a legitimate business reason for alcohol testing. There must be some basis for conducting alcohol testing and it cannot be done on an arbitrary basis.

Employers may require alcohol testing as a condition of return to work from an alcohol rehabilitation program if the employer believes the employee will pose a direct threat if not tested.

To avoid potential violations of the ADA’s confidentiality requirements, employers should maintain drug test results in employees’ separate medical files. They should only be available to managers with a need to know the results for valid administrative reasons.

[Read more about dealing with Employee Drug Addiction and Alcoholism in New York.]

Drug Testing Procedures

Under the federal Omnibus Transportation Employees Testing Act of 1991, some employees within the transportation industry are subject to mandatory drug and alcohol testing rules. The rules apply to employees in “safety-sensitive” positions, such as pilots, airline mechanics, truck drivers, and bus drivers.

Although the federal transportation drug testing rules do not technically apply to most employees, they provide a detailed set of testing protocols and procedures often voluntarily borrowed by other industries.

The transportation industry rules identify these drug testing scenarios:

• Pre-employment
• Random
• Reasonable Suspicion
• Periodic
• Post-Accident

They also establish rigorous laboratory parameters to ensure accurate test results. Most employers who require employee drug testing us specimen collection/analysis professionals who comply with federal Department of Transportation standards.

[Read more about avoiding retaliation claims when conducting post-incident drug testing.]

Drug Testing Unionized Employees

Drug testing employees who belong to a bargaining unit represented by a union is a mandatory subject of bargaining. So, employers with union-represented employees must negotiate with the union over any employee drug testing programs.

However, private sector employers generally do not have to negotiate with a union over pre-employment drug testing. Because applicants are not yet employees, the National Labor Relations Board has found that employers have no obligation to bargain over pre-employment requirements.

Drug Testing Public Employees

Unions represent most public sector (i.e., government) employees in New York. And, like private companies, most governmental employers in New York must negotiate with their employees’ unions over drug testing.

Beyond any bargaining obligations, constitutional restrictions may apply to public employee drug testing. Because of the Fourth Amendment’s protection against unreasonable searches and seizures, public employers must have “individualized suspicion” to drug test an employee. Where there is “individualized suspicion,” the employer may drug test the employee when a “special need” outweighs the employee’s privacy interest.

The Drug-Free Workplace Act

Employers with federal grants and some federal contractors are subject to the federal Drug-Free Workplace Act. Covered employers must adopt a drug-free workplace policy and establish a drug-free awareness program. The law does not require any employers to drug test any employees.

For more, read What Does the Drug-Free Workplace Act Require?

Elements of an Effective Drug Testing Program

Employers who choose to test for drug or alcohol use regularly should implement a written policy. The policy should identify:

• Prohibited Conduct
• Occasions for Drug Testing of Employees/Applicants
• Test Collection and Analysis Procedures
• Consequences of Failing a Test
• Provisions for Rehabilitation and Recovery

In addition to drug and alcohol testing, employers should consider making available an Employee Assistance Program to address substance use, among other employee issues. Especially if reasonable suspicion testing will be used, employers should also provide training to supervisors and employees regarding signs of substance abuse.

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