Workplace Drug Testing Issues – New York State Laws
These categories do no effect DOT-regulated drug testing. Government employers should always call for potential additional restrictions on employee drug testing.
2021 Update – Recreational marijuana is now legal. With limited exceptions, New York State employers cannot test for marijuana. This does not affect DOT drug testing. (see article published by Jackson Lewis P.C. – New York Department of Labor Publishes Guidance Addressing Recreational Marijuana In The Workplace; Most Drug Testing For Marijuana Is Prohibited)
New York City has a law to prohibit employers from conducting pre-employment drug testing for THC (marijuana). There are exemptions including DOT testing and safety sensitive positions.
2020 Update – Regardless of CDL license status – for hire drivers of transporting 10 or more people at a time to submit to mandatory pre-employment drug testing. This testing should comply with DOT regulations 49 CFR Part 40.
Workplace Drug Testing Laws in New York
|Drug Testing Issue||Status||Comments|
|Instant or POCT Testing||Restricted||On-site testing facilities are subject to regulation under the state's clinical laboratory licensing law per the NYS Department of Health. Neither LabCorp nor Quest Diagnostics perform instant drug testing at their drug testing centers in New York State.|
|Drug Panels||Restrictions||Cannot test for marijuana with limited exceptions including DOT testing as an exception.|
|Laboratory||Licensing requirements||SAMHSA certified laboratories highly recommended.|
|Medical Review Officer (MRO)||Required||Drug testing results must be reported to an MRO before they can be released to the employer.|
|Random Testing, Reasonable Suspicion Testing||No Restrictions|
|Post-Accident Testing||No restrictions||Follow a 'reasonable basis' for requiring a post-accident drug test.|
|Oral Fluid Testing and Hair Testing||No restrictions||Laboratories must be licensed.|
|Unemployment Denial||Yes, address in company policy||State in your drug free workplace policy that a refusal to test or a positive test is misconduct. Terminate employment for misconduct.|
|Workers Comp Discount||Yes, discount available||Drug and Alcohol Prevention Program requirements for Code Rule 60. Separate credits are provided for safety, return or work, and drug and alcohol prevention. Maximum credits of 10% the first year and 6% thereafter|
|Intoxication Defense||Yes, denial of claim available||Provisions for Workers' Compensation Denial - Workers' Compensation Law §10 and §21|
|Medical Marijuana||Yes||Medical Marijuana Law (AB 6357) prohibits smoking marijuana. Employers may enforce policy of prohibiting employee from performing employment duties while impaired by controlled substance|
|Recreational Marijuana||Yes||Effective March 31, 2021 - Revise drug free workplace policies, use caution when terminating for a positive marijuana drug test.|
|Report Driver DOT Positives||No|
|General Statute||None, however Code Rule 60 is a voluntary program that permits employers to put certain safety-related programs in place that qualify them for workers' compensation credits.|
Medical Marijuana – Medical Marijuana Law (AB 6357)
Workers Comp Discount – Code Rule 60
Intoxication Defense – States vary in their willingness to allow employers to use an injured worker’s intoxication as a defense against a claim for compensation. State laws’ intoxication defenses generally fall into one of three rough categories: defenses that do not depend on causation; defenses that require some form of proximate causation between intoxication and injury; and defenses that require that intoxication be the sole cause of injury. Always check with your insurance company and your attorney when you have a positive post-accident test after an injury.
This chart is intended for informational purposes only and should not be relied upon for legal guidance. State and local law varies greatly; therefore, you are advised to consult experienced legal counsel during the design of your actual substance abuse testing program and with any questions that follow.
State Law New York