New York Drug Testing Laws 2024

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New York Drug Testing Laws 2024

The Consolidated Laws of New York, Section 201-D, protects employees' use of marijuana before and after their work hours and outside employers' premises (without the use of employers' other property or work tools). This means that employers cannot punish employees for off-duty cannabis use as long as they consume cannabis products in accordance with New York law. Similarly, they cannot sanction employees with detectable levels of non-psychoactive marijuana metabolites if they do not show clear symptoms of impairment. However, in New York, employers may take employment action against employees who are impaired by cannabis while working, even if the employers have no explicit policies prohibiting marijuana use.

Enacted in March 2021, the New York Marijuana Regulation and Taxation Act legalized adult-use cannabis and updated the state's workplace drug testing laws. It amended Section 201-D of the state's Labour Law to clarify that marijuana consumption in compliance with state law is legal. Section 201-D of the New York Labour Law prohibits employers from discriminating against individuals in compensation or privileges of workplaces because of the legal use of cannabis. Under the new drug testing compliance laws, employers are prohibited from making employment decisions based on positive cannabis drug tests. New York is the first state in the United States to prohibit employers from testing current or prospective employees for cannabis, except in certain circumstances.

What Kinds of Drug Tests Can Employers Conduct in New York?

No specific law in New York prohibits employers from drug testing their employees for ethanol, cocaine, opiates, meperidine, methadone, amphetamines, or benzodiazepines. However, unless permitted to do so pursuant to Section 201-D(4-a) of the state's Labor Law or other applicable laws, no employer in New York may test an employee for cannabis. The New York Department of Labour issued guidance in October 2021 that employers may drug test employees for cannabis where there are articulable symptoms of impairment. Despite this, under state law, no employer is authorized to take adverse employment actions based on employees' positive cannabis drug test results. Consequently, even when there is reasonable suspicion that an employee is impaired by marijuana, there will be no point in conducting cannabis drug testing.

In New York, no drug testing compliance laws prevent employers from using any specimen for drug testing employees under the very limited circumstances where state law permits testing employees for cannabis. In such cases, an employer may choose to collect an employee’s blood, saliva, hair, urine, or sweat as a specimen to test for the presence of THC metabolites.

Can Employers Do Random Drug Testing in New York?

Yes. No law currently prohibits public and private New York employers from conducting random drug testing on their employees unless such a test pertains specifically to cannabis testing. For instance, 16 CRR-NY 262.105 permits the state's Department of Public Service - Gas Utilities to do random drug testing on its employees unannounced using a scientifically valid method. Generally, random drug testing is done by selecting employees for testing randomly without prior notice to the employees. Nevertheless, an employer with a random drug testing program/policy should notify their employees of such policy when hiring them.

What Happens if You Fail a Drug Test in New York for a Job?

The repercussions of failing a drug test for employment purposes in New York are usually determined by the hiring manager. In most instances, however, anyone who tests positive for drugs after taking a drug test for a job will not likely be employed. Other than drug tests for marijuana, New York currently has no law prohibiting or restricting employers from conducting drug tests on their employees. However, employers must conduct such tests in accordance with state laws to avoid running into legal issues.

Employees who fail drug tests in New York may be pardoned if they can show legitimate prescriptions from licensed medical providers for such drugs. Nevertheless, the use of some prescription drugs may not be forgiven. An employee who fails a drug test for heroin or cocaine may be subjected to disciplinary action and can be referred to an Employee Assistance Program (EAP) for proper treatment and rehabilitation.

Can I Be Fired for Refusing a Drug Test in New York?

Yes, but this depends. In New York, most employees are protected by law if they refuse to take a drug test, as the state currently has no law addressing testing for drugs other than cannabis. In addition, employers cannot forcefully subject their employees to drug tests unless they have reasonable suspicion. However, employees whose job roles require them to take random or regular drug tests can be fired or subjected to other disciplinary actions for refusing drug tests in the state. For instance, because of the safety-sensitive nature of their job, commercial vehicle drivers may not refuse to undergo drug tests. This also applies where an employment contract clearly outlines a workplace policy requiring an employee to undergo drug testing.

Can You Get Fired for Failing a Drug Test with a Medical Card in New York?

Generally, state law now prohibits employers in New York from drug testing their employees or prospective employees for marijuana unless in certain circumstances. So, no employee can be discriminated against or fired for failing a cannabis drug test, whether they have a medical marijuana card or not. However, a person can be fired for failing a drug test where the employer is allowed to test its employees for marijuana pursuant to the provisions of Section 201-D(4-a) of the New York Labour Law or other applicable laws.

Can Employers Conduct Drug Tests on Applicants in New York?

As of 2024, no New York law prohibits employers from conducting drug tests on job applicants under the state's drug testing compliance laws unless it pertains specifically to cannabis testing. State law bans employers from testing job applicants for cannabis or THC as a condition of employment, although with some exceptions.

If a job applicant refuses a drug test in New York for a job role that requires drug testing, this can be grounds for the employer not to hire the applicant. Similarly, where drug testing for cannabis is mandatory, an employer can deny a medical marijuana patient employment for testing positive for THC. Otherwise, employers are banned from discriminating against employees who legally use medical or recreational cannabis in New York solely for failing cannabis drug tests.

Is Pre-Employment Drug Testing Allowed in New York?

There are no known New York pre-employment drug testing laws, so pre-employment drug testing is not mandatory in the state. However, except for cannabis drug tests, employers can conduct pre-employment drug tests on new employees for positions affecting public safety before resumption. In New York, employers are required to provide reasonable accommodations to employees who are medical cannabis users unless doing so would cause a loss of federal funding or contract or a violation of federal law.

Does New York Allow Public Agencies to Submit Employees to Workplace Drug Tests?

New York has no specific drug testing laws for employees unless for tests relating to marijuana or THC. The state's Labor Law, Section 201-D (4-a) applies to both public (local and state government) and private employers, regardless of industry or occupation. The law also protects public sector employees. Hence, except in certain circumstances, public agencies in New York cannot mandate their employees to submit to workplace drug tests for cannabis. One such exception is when an employee manifests certain articulable symptoms of marijuana impairment, affecting the employee's performance while working.

Can Employers Choose to Create Drug-Free Workplace Policies?

Yes. In New York, employers are not banned from establishing drug-free workplace policies. Particularly, nothing in the state's Marijuana Regulation and Taxation Act requires an employer to permit or accommodate the use, possession, or consumption of marijuana on workplace premises or during work hours. New York prohibits on-the-job use of or impairment from controlled substances, including cannabis, under the state's Policy on Alcohol and Controlled Substances in the Workplace. An employee who is suspected to be impaired by a controlled drug and is unable to perform their duties can be subjected to a drug test.

Employees Exempted From New York Workplace Drug Testing Laws

No New York law is explicit on testing employees for drugs other than marijuana or THC. Generally, the state prohibits employers from subjecting their employees to drug tests for cannabis unless in certain circumstances, usually for employers with federal employees. In New York, some employees are exempted from the state's workplace drug testing law and may be required to submit to drug tests in circumstances where:

• Required by state or federal law for purposes of security or safety
• Required by the United States Department of Transport under 49 CFR Part 40 or related local or state rules
• The job position falls into any of the following:
• Positions needing a commercial driver's license (CDL)
• Peace officers or police officers
• Positions caring for medical patients
• Job roles covered by Section 220-H of New York Labor Law, which covers certain employees at public work sites
• Positions caring for or supervising children
• Required by the federal government as a condition for the employer to receive a grant or contract
• A collective bargaining agreement specifies drug testing of job applicants as a condition of employment

What are the Requirements for Drug Testing Labs in New York?

When drug testing is required or mandatory for employees in New York, employers may only contract drug testing laboratories with approval from the state's Department of Health. Also, employers must confirm if such drug testing facilities comply with clinical laboratory permit regulations established by the NY State Department of Health. Testing staff must conduct drug tests in line with established procedures, having been trained by qualified persons with knowledge of the testing procedure. Generally, drug testing laboratories in the United States, including the ones in New York, should be ISO/IEC 17025 accredited.