New York Memo to All Employees Regarding Drug Testing
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FAQ
Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury.
New Subdivision 31 of Section 8-107 of the Administrative Code of the City of New York (the New York City Human Rights Law), added by Local Law 91 of 2019, prohibits employers, including City agencies, from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (THC) or
New York employers are not allowed to drug test their employees for cannabis except under limited circumstances, based on new guidance this month from the state Department of Labor. The state is currently laying the groundwork for the legal sale of marijuana after legalizing its recreational use in the spring.
You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or otherwise harmed at work. The law requires employers to provide their employees with working conditions that are free of known dangers.
Indiscriminate testing of employees for drug use is an intrusive and degrading process that undermines our most deeply held tenets of fairness and privacy in the workplace. It should not be surprising, then, that a recent study concluded that workplace drug testing lowers productivity.
Can an employer drug test an employee if federal law allows for drug testing? No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.
Key Points: New York employers are now prohibited from drug screening most workers and applicants for cannabis use. Employers can still ban use of cannabis during work hours. Exceptions for safety-sensitive positions or as required by law.
Under the new rule, post-accident drug-testing is okay only if there is an objectively reasonable basis. According to OSHA, this can include situations where employee drug use is likely to have contributed to the incident, and/or when the drug test can accurately identify impairment caused by drug use.
Employers can only drug test if there is a drug testing policy that the employee is aware of and agrees to. This may be in your contract or staff handbook, both of which you should check to see if your employer can make you have a drug test.
The provisions prohibit employers from using drug testing or the threat of a drug test to discourage workers from reporting on-the-job injuries and illnesses. Specifically, OSHA said employers shouldn't administer blanket post-accident drug tests in situations when drug use likely did not cause an injury.
