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New Jersey drug testing laws

Has your employer or prospective employer in New Jersey asked you to take a drug test? Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, state and local laws determine whether an employer may test employees and applicants for drugs.

Every board of education in the State of New Jersey may require its employees and shall require any applicant awarded with a conditional offer of employment to undergo physical examination which includes testing for the use of controlled dangerous substances. Such tests shall be performed by a physician or laboratory designated by the Board with the costs of the tests shouldered by the Board.

The law demands that the cost of any medical examination required by the employer as a condition of entering or continuing employment be paid or reimbursed by the employer and in no way, shall be deducted from the employee’s wages.

Any action of defrauding the administration of a drug test or producing a false or misleading result for a test for controlled substances constitutes a criminal act in New Jersey. A State Supreme Court decision allows for random drug testing but limited only to safety-sensitive occupations.

Workers’ compensation and unemployment benefits may be denied of an employee due to willful negligence which includes intoxication or unlawful use of controlled dangerous substances.

Drug testing in New Jersey

Although many states have passed laws regulating or restricting an employer’s right to require drug testing, New Jersey has not. New Jersey legislation does not address drug testing in private employment.

The Supreme Court of New Jersey has ruled on drug testing in private employment. In Hennessey v. Coastal Eagle Point Oil Co., the Court found that the validity of an employer’s policy of random drug testing had to be weighed on a case-by-case basis, taking into account the employee’s job responsibilities. In that case, the employee was fired for failing a random drug test and sued for wrongful termination in violation of public policy. The Court ruled against the employee, finding that his job posed a significant risk to public safety and, therefore, that the employer’s interest outweighed the employee’s right to privacy.

Random new Jersey drug testing

The New Jersey Supreme Court allows every NJ-based employer to require random drug testing for alcohol, prohibited and prescription drug for work that is safety-sensitive. This basically relates to hazardous jobs and work where safety could be an issue. Examples are public transportation drivers, fork-lift operators and commercial drivers. The issue with random New Jersey drug testing is qualifying what “random”, “reasonable suspicion” and “for cause” constitute. In some instances, the Supreme Court of New Jersey held that random New Jersey drug testing is deemed an invasion of privacy on the part of the employee. Generally, the court weighs the question of the employee’s privacy against the employer’s need in the case of random drug testing in the workplace.

New Jersey medical marijuana law

Like a growing number of jurisdictions, New Jersey has passed a medical marijuana statute, entitled the New Jersey Compassionate Use Medical Marijuana Act. However, nothing in the law requires an employer to accommodate the medical use of marijuana in any workplace, including to patients who are officially registered in the State program. Marijuana use, both medicinal and recreational, remains illegal under federal law and, consequently, employers may continue to proscribe its use through lawful workplace drug testing policies.

Effects on workplace drug testing

Currently, drug testing in private employment is not addressed by New Jersey legislation. An employer may or may not require pre-employment drug testing and random drug testing under federal law stipulations. Employees who think that their drug test was done illegally will have to depend on other legal theories to further their cause.3 Federal employees and those who have high-risk jobs are mandated to undergo drug testing.

Legal claims for drug testing

Because New Jersey law puts very few limits on workplace drug testing, employees who believe their test was illegal will have to rely on other legal theories. For example, an employer may run into legal trouble based on who is tested or how the test is conducted. Here are some examples:

Disability discrimination. The Americans with Disabilities Act (ACA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications can result in a positive result on a drug test, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable.

Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender– for drug testing could face a discrimination claim.

Invasion of privacy. Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation, depending on the circumstances.

Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive result, if the employer acts in bad faith and knew (or should have known) that the result was incorrect.

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