Generally, the answer is yes and your employer can terminate you if you fail the drug test.
The United States Supreme Court first upheld the right of an employer – in this case the federal government – to drug test employees in “safety sensitive positions” without any reason for suspicion in the cases of Skinner v. Railway Labor Executives Association (1989) and National Treasury Employees v. Von Raab (1989). Because these cases involved the federal government as the employer, the arguments about the legality of the drug test centered on whether the Fourth Amendment’s protection against unreasonable searches and seizures had been violated. It is important to keep in mind that the Fourth Amendment DOES NOT APPLY to private sector employers. Similarly, New York state and city law both permit businesses to conduct random or suspicionless drug testing of its employees. See N.Y.C.R.R. § 466.11(h)(6)(ii); N.Y.C. Admin. Code § 8-107(15)(c). Thus, private employers in New York are specifically permitted to drug test employees for any position.
Employment At-Will And The FMLA/ADA
As we have noted in the past, unless an employee has an employment contract, employment in New York is “at-will” and an employer can terminate an employee for any or no reason, including refusing to take a drug test or testing positive for drugs (illegal or otherwise). However, the Family Medical Leave Act or Americans with Disabilities Act may provide some protection.
- FMLA: The FMLA protects employees who suffer from serious medical conditions, which includes receiving treatment for drug abuse; however, the FMLA specifically permits an employer that has an established policy against illegal drug use to discipline (including terminate) employees that violate that policy. That means that if your employer has a policy against illegal drug use and you violate that policy, your employer can terminate your employment regardless of whether you have requested or gone out on FMLA leave.
- ADA: The ADA specifically excludes individuals that currently engage in the use of illegal drugs from the definition of an “individual with a disability;” however, the it does prohibit discrimination against individuals that (i) have been successfully rehabilitated and who are no longer engaged in the use of illegal drugs or (ii) are currently participating in a rehab program and no longer engages in the use of illegal drugs. The ADA would not, however, protect an individual that fails a drug test and then goes into rehab (state and city law in are agreement with the ADA on this point).
As with most employment law issues, your legal rights will depend heavily on the facts or your specific case and it is important that you discuss your situation with an attorney. If you would like to be connected with an attorney, fill out the form below.