Question:
Under what circumstances can an alarm company owner drug test his
employees? In the event that it is discovered that an employee is using
drugs, under what circumstances and conditions can the employee be
terminated?
Answer:
It is in the interest of providing and maintaining safe and efficient
working environment that employers drug test their employees. In New York,
"The courts have uniformly held that drug testing by private employers
raises no constitutional issues, nor does it so infringe on individual
rights to privacy that it must be banned entirely. Therefore, in the
absence of a statutory prohibition against drug testing, the practice is
not per se unlawful." Accordingly, absent the passage of a statutory
prohibition, it is per se permissible for a private alarm company to
conduct nondiscriminatory random drug tests. From the onset of employment,
employees should be notified that submitting to random drug tests is a term
and condition of employment and all positive results must be properly
confirmed in order to help reduce the liability for "adverse employment
action."(1)
Employers may deny an applicant employment or terminate the employment of a
current employee based on a positive drug test. However, employers should
be mindful of the fact that drug addictions can be considered a disability
within the meaning of the Human Rights Laws so as not to find themselves
the subject of a lawsuit. While HRL §296 provides that an employer cannot
discriminate because of the disability of an individual and the Mental
Hygiene Law §1.03(3) defines substance dependence as a "mental disability"
within the meaning of HRL §292 (2), the Courts have ruled that the HRL does
not apply the term "disability" to those who are casual or social users of
drugs. The HRL is designed to protect only those persons who are addicted
or have been addicted to drugs, but are presently recovered, from being
denied employment or terminated from employment.(3)
A person who is considered to be disabled within the meaning of the HRL can
be denied employment and terminated from employment. In order to take one
of these "adverse employment actions," a company must either prove that due
to the disability the individual would be prevented from performing the
activities involved in the job in a reasonable manner, that the person
constitutes a "direct threat to property or the safety of others or that
the person's actions constitute disqualifying misconduct.(4)
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1. Chapman, Kevin, Drug Testing of Employees and Applicants: Legal and
Practical Considerations for Private Employers in New York, 66-FEB N.Y. St.
B.J. 14 (2004).
2. The term disability encompasses "physical, mental or medical
impairment... which prevents the exercise of normal bodily function or is
demonstrable by medically accepted clinical or laboratory diagnostic
techniques, provided, however, that in all provisions of this article
dealing with employment, the term shall be limited to physical, mental or
medical conditions which do not prevent the complainant from performing in
a reasonable manner the activities involved in the job or occupation
sought."
3. Barr v. Niagra Mohawk Power Corp., Case No. 5-E-D- 84-966377.
4. See Jennings v. Leon, 2004 N.Y. Slip Op. 50858(U); Burka v. New York
City Transit Authority, 680 F. Supp. 590.