May My Company In New York Subject Its Employees To Random Drug Testing and Lawfully Fire Workers Who Test Positive For Illegal Drugs?

May My Company In New York Subject Its Employees To Random Drug Testing and Lawfully Fire Workers Who Test Positive For Illegal Drugs?

Random testing means choosing workers for tests at random, without suspicion, and without advance notice of when the test will take place.  Random testing may also encompass the testing of all employees in a company (or a given division of a company) when the date of the testing is not announced, and is more properly called "suspicionless" testing.

In New York State and New York City, a non-governmental employer lawfully may conduct random or suspicionless drug testing of its workers.  Further, in New York, a company in the private sector lawfully may fire employees who test positive for illegal drugs or who refuse to submit to a random drug test, at least where the company has a written policy, communicated to all employees, providing that the company may randomly test employees for drugs, that refusal to submit to a random drug test may result in termination of employment, and that under certain circumstances an employee may be terminated for substance abuse.

In New York, a business in the private sector is permitted to conduct random or suspicionless drug testing of its employees.  See 9 N.Y.C.R.R. § 466.11(h)(6)(ii) ("Nothing in these regulations [promulgated under the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (the "State Human Rights Law")] is to be construed to. . . prohibit . . . the conducting of drug tests for the illegal use of drugs by job applicants or employees, or the making of employment decisions based on the test results"); N.Y. City Human Rights Law, N.Y. City Admin. Code § 8-107(14)(c) (Use of drugs or alcohol) ("Nothing in this chapter shall be construed to prohibit a covered entity from (i) prohibiting the illegal use of drugs or the use of alcohol at the workplace or on duty impairment from the illegal use of drugs or the use of alcohol, or (ii) conducting drug testing which is otherwise lawful").

So, too, in New York, a company in the private sector lawfully may fire employees who test positive for illegal drugs or who refuse to undergo a random drug test, at least where the company has a written policy, communicated to all employees, stating that the company may subject employees to random drug testing, that refusal to undergo a random drug test may result in discharge from employment, and "that  . . . under certain circumstances an employee may be terminated for substance abuse."  See 29 C.F.R. § 825.119(b) (pursuant to an established policy warning that an employee may be fired for substance abuse, "the employee may be terminated whether or not the employee is presently taking . . . leave" under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.)

Firing non-governmental workers who fail, or refuse to submit to, a random drug test is lawful because, absent a written agreement of employment, employment in New York State is at will.

It is true that the New York State Human Rights Law prohibits employers from firing an individual because of the individual's  disability; and that the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 - 8-131 (the "City Human Rights Law") bars employers  from firing an individual because of the individual's actual or perceived disability.

However, "current drug users are not protected by" either the State Human Rights Law or the City Human Rights Law.  See Gilmore v. University of Rochester Strong Memorial Hosp. Div., 384 F. Supp.2d 602, 611 n.8 (W.D.N.Y. 2005); see also 9 N.Y.C.R.R. § 466.11(h)(1) ("[A]n individual who is currently using drugs illegally . . . is not protected [from employment discrimination] . . . by the [State] Human Rights Law"); 9 N.Y.C.R.R. § 466.11(h)(4) ("Where the employer has knowledge of the current illegal use of drugs, the employee is not entitled by law to accommodation, and may be terminated"); N.Y. City Human Rights Law, N.Y. City Admin. Code § 8-107(14)(c).

Not only may a business in the private sector in New York fire an employee who tests positive for illegal drugs or who refuses to undergo a random drug test, the employee's positive test result or refusal to submit to the random drug test is "misconduct" which, if it is the basis for the employee's discharge, disqualifies the employee from receiving unemployment insurance benefits, at least where the business has a written policy, conveyed to all employees, stating that the business may randomly test employees for drugs and that refusal to submit to a random drug test may result in termination of employmentSee N.Y. Labor Law § 593(3); Matter of Gordon, 278 A.D.2d 579, 580, 718 N.Y.S.2d 228 (3rd Dep't 2000); Matter of Grover, 233 A.D.2d 809, 809-810, 650 N.Y.S.2d 392 (3rd Dep't 1996); Matter of Atkinson, 185 A.D.2d 415, 415-417 (3rd Dep't 1992).

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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