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 §
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 employment. See 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
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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