New York Drug Testing Laws and Regulations

Important Bulletpoints 

• While the general provisions of the law on Labor penalizes employers who require applicants and employees to pay for the costs of any medical examination required by the employer as a condition for employment, there exists a categorical statement in the New York City Administrative Code that drug tests are not to be considered as a type of medical test.
• Alcoholism and drug abuse are considered diseases as far as New York jurisprudence is concerned. The current illegal use of drugs by employees is outlawed and is a basis for termination. However, persons who have recovered or are recovering from alcoholic or drug addiction are protected by the law and must be allowed reasonable accommodation which may include adjustments to work schedule to allow ongoing treatment. 
• Employers who know of an employee’s current illegal use of drugs are encouraged to offer a leave of absence to the employee with a required attendance at a rehabilitation program and a last chance agreement upon return. If the employee refuses the offer, disciplinary action or termination is authorized. 
• Drug testing of school system drivers is mandatory in New York which may include pre-employment, random, reasonable suspicion, post-accident, and return to duty drug testing. Only certified laboratories may conduct the initial and confirmatory tests and a validation by a medical review officer is required.

New York Drug Testing Law:

There are many New York employers who demand drug testing for their employees and applicants. Under the Federal and state drug-free work place program, this demand or requirement is legal. A New York drug test is also a requisite in athletic departments to ensure that athletes are not under-abusing the use of steroids and other performance-enhancing drugs. 

Drug testing in New York for those working as drivers in the school system and public transportation is required each year to keep their license valid. Mandatory New York drug testing may be conducted before employment, as routine procedure, at random, based on reasonable suspicion, post accident, post treatment or rehabilitation and upon return to work/duty drug testing. Radom New York drug testing should be unannounced and non-routine testing applied indiscriminately to some and not every employees in the work place.

Note that even if there are no explicit New York drug testing laws, alcohol testing and random drug testing of those working as law enforcers and correction officers are mandatory. 

Though employers are required to pay for their employee’s medical tests, drug testing in New York is not considered a medical test. However, this does not mean that drug abuse (and/or dependency) and alcoholism are not considered as diseases in the state of New York. Drug abuse by employees is illegal and could be a strong basis for termination. Drug abuse in the workplace could results to employees’ absenteeism, tardiness, poor work performance, theft and crime in the workplace and more. A survey indicated that drug abuse in the workplace cost the business community from $75 to $100 billion dollars annually in accidents, lost time, and workers ’ compensation and health care. 

Employee’s Rights Under New York Drug Testing Law: 

Though the use of illegal drugs is outlawed in New York, employees who are recovering addicts or alcoholics are basically protected by the law, requiring employers to accommodate such employees in aspects such as adjusting the particular employee’s work schedule to facilitate his current treatment. However, an employer has the right to terminate an employee if he refuses to undergo a drug rehabilitation program.

New York drug testing must be done by a refutable drug testing laboratory. Drug testing in New York could involve blood tests, urine tests, hair and saliva tests, breath analyzers and sweat patches. An employee who tested positive for a drug test could request for a retest from a laboratory of his choice. New York courts deem it unconstitutional and discriminatory to reject a potential employee based solely on a positive drug test. The employer must be able to demonstrate that the potential employee’s substance abuse will prevent him from doing his job. Note that the use of controlled drugs legally prescribed by a medical doctor is not considered “illegal”.

What Employers Should Do Regarding New York Drug Testing : 

• The employer should have a written policy posted and distributed to and acknowledged/signed by all employees
• The employer should provide a 60-day notice to all employees before any drug testing is implemented 
• The employer should ensure prompt and confidential test result

Medical Marijuana Law:

Assembly Bill 6357 or the New York’s Compassionate Care Act, by Richard Gottfried and Sen. Diane Savino, was approved and signed into law by Governor Andrew Cuomo on July 5, 2014. This law effectively removes state-level criminal penalties on the possession and use of cannabis by patients who have been approved to use medical marijuana in order to alleviate symptoms caused by incapacitating medical conditions and their medical treatments. 

For a person to qualify for the New York Medical Marijuana Program, he must be diagnosed with a life threatening, or debilitating condition with a co-existing or associated complication. He must have a written certification from a qualified and certified medical doctor.

The complete Medical Marijuana Program Regulations was filed for adoption on March 31, 2015. On November 11, 2015,

Governor Andrew Cuomo signed a bill that expedites the certification process for seriously ill patients, and consequently allows all cannabis producers to register quickly as possible. On January 7, 2016 eight of the proposed 20 medical marijuana dispensaries statewide opened, thus officially launching the New York Medical Marijuana Program.

Qualifying Medical Conditions 

• Glaucoma
• Cancer 
• Positive HIV
• AIDS 
• Multiple sclerosis 
• Parkinson’s disease 
• spinal cord disease or damage 
• epilepsy 
• intractable spasticity 
• cachexia 
• Crohn’s disease 
• wasting syndrome 
• post-traumatic stress 
• Fibromyalgia 
• Neuropathy 
• Lupus 
• Arthritis 
• Diabetes
•  condition that causes nausea, inability to tolerate food, dysphoria and vomiting

Limitations 

• Smoking marijuana is not a method of treatment approved by the bill.
• Health insurers are not mandated to cover medical marijuana.
• Existing Article 221 of the penal law are to be followed regarding the sale and possession of marijuana.
• Possession of marijuana is illegal if it is smoked, vaporized or grown in a public place. 

Recreational Marijuana Law

The Marihuana Regulation and Taxation Act was submitted by Senator Liz Krueger in 2015. This bill would legalize the use, possession and cultivation of marijuana for individuals aged 18 and above in New York. This bill would form a licensure and excise tax system for the production and processing of marijuana, abolish pertinent penal code provisions to remove penalties for the cultivation, use and possession of cannabis. 

Limitations

• Nothing in this bill prohibits district government authorities, officers or employers to enforce workplace policies pertaining to marijuana.
• Driving under the influence of marijuana is punishable by law. 
• Smoking marijuana in locations where smoking is prohibited is not permitted.
• An individual is required to adhere to federal laws. 

Effects on Drug Testing in the Workplace  

The state of New York has not passed laws restricting or regulating an employer’s right to require drug testing. New York State has no legislation that addresses drug test for those employed in private corporations or businesses. 

Basically this means that drug testing is not restricted or prohibited, unless it breaks other provisions such as disability discrimination, defamation, invasion of privacy and other discrimination claims. Federal requirements regarding drug testing for government employees and other sensitive jobs apply. 

Sources:

https://www.testcountry.com/StateLaws/New_York.htm 

https://www.marijuanadoctors.com/medical-marijuana/NY/state-laws medicalmarijuana.procon.org/sourcefiles/new-york-a7060.pdf https://www.nolo.com/legal-encyclopedia/workplace-drug-testing-innew-york.html 

https://www.health.ny.gov/regulations/medical_marijuana/