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Employee Drug Testing in New Jersey? No Help for Employers!

dt.jpgAny employer wants to ensure that its employees or new hires aren't under the influence of illegal substances while on the job. Common tests used to determine if employees have drugs in their systems include those using urine, hair, blood, and saliva samples. But sometimes company policy may want random or more extensive tests, and employees may worry that their privacy rights may be violated.

Aside from a few "safety-sensitive" industries (such as mass transportation or defense), federal law leaves laws on drug testing up to the states. For better or worse, New Jersey has no law or guidance on employee drug testing In the 1992 case of Hennessey v. Coastal Eagle Point Oil Co., the New Jersey Supreme Court said that the validity of an employer's drug test policies must be determined on a "case-by-case" basis, giving employers greater freedom to test where the employee has a clear and direct effect on public safety. When the employee's individual right to privacy outweighs any public concern, however, the employer's policies may be overturned if they violate due process standards (which include reasonable notice and explanations of how the sample will be used). That obviously creates a confusion for businesses.

One thing is clear - when New Jersey employers apply their drug-testing policies, they must comply with other areas of employment law. For example, employers can't violate anti-discrimination laws by targeting certain protected groups of employees (such as those belonging to a racial minority group, or those with disabilities). Employers who choose to target certain employees based on their position in the organization may have to prove to a court a sufficient business justification if the practice is challenged.

Also, employers can't defame their employees by publicizing incorrect positive results, when they have reason to believe that the test may be inaccurate. Certain industries and government agencies have created their own codes of conduct. The Department of Transportation, for example, has provided in its standards that all drug testing facilities should be certified, that the information should be disclosed on a need-to-know basis, and that the tests themselves be conducted with the utmost respect towards dignity and privacy. Though the Hennessey case allows for employer discretion and judgment, it may be a good idea for New Jersey businesses to look at the DOT standards as a model or guideline, since the law in this state doesn't give them any clear "do's and don'ts." Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated with me on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.

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