New York Drug Testing Policy

by | Aug 21, 2020 | 0 comments

Use and abuse of alcohol and drugs has a detrimental effect on the productivity, attendance, and health of our work force. As a public
employer, we must be vigilant to protect the safety and welfare of the public with whom we interact and the employees with whom we
The longstanding policy of the State is and has been that employees will be subject to criminal, civil and disciplinary penalties if they
distribute, sell, attempt to sell, possess or purchase controlled substances while at the workplace or while performing in a work-related
capacity. Such illegal acts, even if engaged in off duty, may result in disciplinary action. In those work locations where it is permitted,
an employee may possess and use a controlled substance which is properly prescribed for him or her by a physician.
It has also been the continuing policy of the State that employees are prohibited from on-the-job use of, or impairment from, alcohol
or controlled substances. In cases where an appointing authority or a designee has a reasonable suspicion that an employee is not able
to perform his or her duties as a result of a disability which may be caused by alcohol or a controlled substance, the appointing
authority may proceed under the provisions of Section 72 of the Civil Service Law and require that the employee undergo a medical
examination to ascertain the cause of the disability. Where testing for alcohol or a controlled substance occurs, appropriate medical
procedures and tests should be utilized to assure accurate and proper results. Confidentiality of the testing process and results is an
important aspect of this procedure for any affected employee.
A “reasonable suspicion” must be based upon specific, reliable observation that the appointing authority or designee can articulate
concerning the appearance, behavior, speech or body odor of the employee. The following observations may indicate drug or alcohol
use: unsteady gait, odor of alcohol on the breath, thick or slurring speech, aggressive or abusive language or behavior, and
disorientation or lethargy.
It is also not unreasonable for the appointing authority to consider the employee’s time and attendance patterns, such as absences
around weekends, pass days or payday, excessive use of sick leave, excessive lateness and unauthorized absences, on-the-job
accidents, difficulty in recalling instructions or conversation, poor relationships with co-workers and supervisors, and other variations
in productivity when making a determination as to whether a “reasonable suspicion” that an employee is suffering from a drug- or
alcohol-related disability is present.
Such medical examinations may be required under the safeguards of Section 72 of the Civil Service Law for employees who are
permanently appointed competitive employees or employees subject to due process before termination. Other State employees who
are not entitled to any due process protection before being terminated or placed on involuntary leave may also be required to undergo
such a medical examination, if appropriate under the circumstances.
Once a determination is made that an employee is using, is under the influence of, or is not able to perform his or her duties due to
alcohol or a controlled substance, the appointing authority may determine the appropriate action to take. When considering the
appropriate action to take, the appointing authority may determine that the affected employee should be disciplined because of the
alcohol or drug use. Disciplinary action may be taken pursuant to the procedures contained in the collectively negotiated agreement or
the law, as appropriate and required.
On the other hand, the appointing authority may determine that, given the nature of the job and the employee involved, the employee
could benefit from the Employee Assistance Program (EAP). In such a case, the employee should be directed to the appropriate EAP
coordinator to assist him or her with whatever problem exists. The Employee Assistance Program is a referral service set up at
individual work sites and available to every employee. Should the employee have a drug or alcohol-related problem, EAP would
provide the employee with a list of places which treat such conditions.
Where an employee is disabled by alcohol or drug use, the appointing authority may also decide to pursue the available disability
leave procedures contained in Section 72 of the Civil Service Law. While employee union representation or concurrence is not
required when pursuing Section 72 action, it is suggested that appropriate employee representatives be alerted as to the action
An agency which has existing additional policies, procedures or practices which apply to its employees may continue to implement
those policies, procedures and practices. The agency involved should notify its OER liaison of them. If an agency believes that a pre-employment or pre-appointment drug test should be utilized, that agency should consult with the Department of Civil Service to
determine the job relatedness of such a test or to seek that Department’s approval to include it in the required pre-employment or pre-appointment physical.
Federal Drug Free Workplace Act of 1988
The Federal Drug-Free Workplace Act of 1988 included the following requirements for employers receiving federal grants or
contracts of over $25,000:
• publish an anti-drug policy statement and provide it to employees
• establish a drug awareness program
• establish as a term and condition of employment that employees report within five days, any criminal convictions for drugrelated activity in the workplace
• notify the awarding federal agency of employee convictions
• take personnel actions against workplace substance abuse
• make a good faith effort to comply with the Federal Drug-Free Workplace Act.
As I indicated earlier, attached is a flyer which can be copied and distributed to staff as a means to continue compliance with the
requirements of the Act.
I encourage you to continue to use the Drug-Free Workplace training program to prepare supervisors to identify and address alcohol
and drug problems. This three-hour program was initially developed in 1990 and agency trainers were prepared to deliver it. The
program has been extremely well-received and was recently updated.
In addition, it should be noted that agencies impacted by the Federal Omnibus Transportation Employee Testing Act of 1991 must
have their own policies, testing protocols in place, and employees trained as to the provisions of the Act. The Act mandates pre-employment, reasonable suspicion, random and post-accident drug and alcohol testing for employees required to maintain a
Commercial Driver’s License for their job and who drive vehicles carrying 16 passengers (including the driver) or vehicles weighing
in excess of 26,001 pounds. Should you have any questions, please contact your agency liaison in the Governor’s Office of Employee
Make New York State a Drug and Alcohol Free Workplace
A Message from the Governor
If you think it is not happening in your workplace, you are wrong. Alcohol and substance abuse are serious problems facing our work
force today. It diminishes the quality of services and increases their costs. At the same time, the personal toll to individuals, families
and our communities is staggering. We must be vigilant to protect the safety and welfare of the public we serve and our fellow
employees. I ask each of you to join with me to keep New York State a drug and alcohol free workplace.
New York State Policy
New York State prohibits on-the-job use of, or impairment from, alcohol and controlled substances. An employee may be required to
undergo medical testing if a supervisor has a reasonable suspicion that he or she is unable to perform job duties due to a disability
which may be caused by the use of alcohol.
If the cause of the disability is found to be drug or alcohol related, the personnel or employee relations officer, in conjunction with the
employee’s supervisor, may refer the employee to voluntary and confidential participation in the statewide Employee Assistance
Program. Other available options include pursuing disability leave procedures or disciplinary measures.
Violations of the State policy on alcohol and substance abuse in the workplace may be the subject of disciplinary action pursuant to
Section 75 of the Civil Service Law or the Disciplinary Articles of collectively negotiated agreements.
State employees are also subject to criminal, civil, and disciplinary penalties for the distribution, possession, sale, or the attempt to sell
controlled substances both in the workplace and while performing in a work-related capacity. In work locations where it is permitted,
an employee may possess and use medication which is properly prescribed by a physician.
“Controlled substances” refers to the hundreds of chemicals listed in the Controlled Substances Act by the federal government. All so called “street drugs” (heroin, cocaine, crack, marijuana, speed, acid) are controlled substances.
A person using a prescribed drug under a doctor’s supervision is not breaking any law. The use of prescribed drugs without a
physician’s prescription is illegal.
Addiction to, or misuse of, prescribed drugs could also subject an employee to medical testing under New York State’s policy
governing alcohol or substance abuse in the workplace.
Employee Assistance Program (EAP)
The New York State Employee Assistance Program is a joint labor-management committee program open to all State employees and
their families. The program is a confidential information, assessment and referral program that provides employee requested services.
These services include:
• Assessment for referral to the most appropriate community resource provider for services related to emotional or physical
illnesses, alcohol and other drug-related problems;
• Assistance with family-related problems;
• Advocacy, assistance and intervention with health insurance;
• Information on resources for issues such as child care, eldercare, legal, and financial support services;
• Workplace health and prevention programs;
• Workplace educational preventive, wellness programs

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