An employer may test employees for illegal drug use in New Jersey. Federal law does not put many limits on testing of employees for drug use in the workplace. The federal government requires testing by employers in a few industries in which safety is of special importance, such as transportation, aviation, NASA contracting, and the Department of Defense. However, drug testing in the workplace is neither required nor prohibited by federal law.
It is mainly state and local laws that determine whether an employer may test employees and applicants for drugs. Many states have passed laws regulating employers’ ability to test their employees or job applicants for drug use. Michigan has not adopted any employee drug testing laws. A local attorney in New Jersey would be able to provide more information.
There is one limitation on the random testing of employees for drug use. Random testing should be limited to testing of employees in positions in which safety is of special concern, and there is a legitimate business necessity for the testing.
A drug test is a chemical analysis of a biological specimen, commonly a person’s blood, breath, urine, or hair. The test is used to detect evidence of the presence or absence of specified drugs in a person’s body. Major applications of drug testing by employers involve the detection of drugs prohibited by law, such as cannabis, cocaine, methamphetamine, and heroin.
An employer might also test for alcohol intoxication through the use of blood alcohol content (BAC) tests of a person’s blood, breath, or urine.
In addition to discounts on an employer’s workers’ compensation costs, employers may believe that drug testing of employees offers the following benefits:
- Improved job performance by employees;
- Fewer job-related accidents;
- Reduced absenteeism;
- Improved morale among employees;
- Increased customer satisfaction.
As for the drug testing of New Jersey state government employee drug testing, while New Jersey has a stated policy that prohibits drug use in the workplace, it does not mandate drug testing of state government employees. Because the State of New Jersey is committed to drug-free workplaces in state government, it is forbidden for state employees to engage in the illegal manufacture, distribution, dispensation, possession, or use of a controlled substance in state workplaces.
However, a person would lose their employment in the New Jersey state government only if they are convicted of a crime of the third degree or higher. If a person is convicted of any crime of the third degree or higher listed in the Comprehensive Drug Enforcement Act of 1987, they could be fired. In addition, all convictions for equivalent federal and out-of-state drug offenses would require a person to lose their job in the New Jersey state government.
It is important to recognize that the medical and recreational use of marijuana is legal in New Jersey, but an employer may test for marijuana intoxication at work. Marijuana use in the workplace is still not allowed in most workplaces.
What Are the Rules for Testing Current Employees?
As noted above, New Jersey law does not impose any rules regarding drug testing on employers. Of course, citizens of New Jersey should be aware of the fact that the situation is different in nearby states in which they might work, e.g., New York, Delaware, and Pennsylvania.
In the absence of New Jersey law to guide employers in drug testing, employers want to put policies in place that would allow them to engage in drug testing without offending certain federal laws, specifically the Americans with Disabilities Act (ADA) and Title VII of the federal Civil Rights Act (CRA).
Yet another concern would be drug testing in connection with workplace accidents that could lead to workers’ compensation claims. Drug testing policies should limit drug testing after an accident in the workplace to situations in which there is a reasonable suspicion of employee drug or alcohol use. An employer who does such testing should be sure to document the facts that give rise to a reasonable suspicion.
Can I Refuse a Drug Test at Work?
Virtually every state allows employers to test job applicants for drugs. It is allowed in New Jersey also. If a job applicant tests positive, an employer may refuse to hire them for that reason. Failing a drug test may result in an employee having their employment terminated.
Some states limit the situations in which an employer may require testing of current employees. As noted above, New Jersey law does not limit employee drug testing.
Of course, an employer may not physically force a person, either a job applicant or an employee, to take a drug test. However, while a job applicant has a right to refuse a drug test, their employer has the right to refuse them a job for that reason. If it is a current employee who refuses a legitimate test, the employer may impose sanctions up to and including firing.
If an employee objects to drug testing and wants to avoid it, they would want to become familiar with their employer’s drug-testing policy. They might be able to avoid any drug-testing that is not done in compliance with the employer’s policy. They may also want to become familiar with the exceptions to employer drug testing that are defined by federal law which also applies in New Jersey workplaces.
What Are the Consequences of Refusing to Take a Drug Test?
As noted above, refusing to take a drug test mandated by an employer depends on the drug testing policy of the employer. However, legally, an employer may subject a person who refuses drug testing to disciplinary action. Disciplinary action may include termination of the person’s employment.
Are There Any Exceptions?
The federal Americans with Disabilities Act (ADA) does not prevent employers from enforcing drug-free workplace policies or otherwise testing employees for drug use. It does not offer any protection to employees who are using illegal drugs.
However, the ADA does make it illegal for employers to engage in employment discrimination against recovering alcoholics and drug users who are already receiving treatment for their addiction. So, an employer may want to put in place a policy that excuses drug users and alcoholics who are in treatment from drug testing.
Also, under the terms of the ADA:
- Employers may not fire, refuse to hire, or refuse to promote a person because they have a history of substance use;
- Employers also may not refuse to promote employees because they are enrolled in a drug or alcohol rehabilitation program.
Employers who have drug-testing programs want to be careful not to focus on employees for testing only because they look or act as though they are under the influence of drugs or alcohol.
Many of the physical symptoms usually associated with alcohol and drug intoxication, e.g., slurred speech, disorientation, or a lack of coordination, can also be the result of a serious physical disability or medical condition. So, selective drug testing of this type might violate the ADA.
People with disabilities or conditions that might resemble intoxication are protected by the ADA. Singling them out for testing or disciplinary action might lead to claims of discrimination.
Finally, employers should not question their employees about their legal prescription drug use as part of any pre-hiring or pre-promotion drug-testing process. While the case law in this area is not entirely clear-cut, some state courts have ruled that requesting such information constitutes a form of discrimination that violates the ADA.
While challenges to drug testing or drug-free workplace policies under Title VII of the Civil Rights Act are rare, employers should make sure that their programs treat all workers equally. Employers want to avoid testing employees so as to select only those of a particular race, ethnicity, or gender. Testing on the basis of race, ethnicity, or gender would violate Title VII of the federal Civil Rights Act.
Do I Need an Attorney if I Refuse to Take a Drug Test?
If you have refused a drug test when applying for a job or at work, you want to consult a New Jersey discrimination lawyer right away. LegalMatch.com can connect you to a lawyer quickly and efficiently.
Your lawyer can analyze the facts of your situation and guide you toward any actions that might help you. It would be a good idea to consult a New Jersey discrimination lawyer before refusing a drug test in order to learn what right you have to refuse.
