Last updated March 27, 2018.
If you’ve just gotten a job offer, congratulations! What you may be wondering next if you live in New Jersey is when a drug test may occur with your new employer, or if you’re already employed, how often you can be tested.
As we’ll discuss below, when the testing occurs matters, and also whether you are a public or private employee.
NJ Drug Testing Laws: Employees Have Limited Protection
Very generally speaking, laws such as the federal Americans with Disabilities Act prohibit employers from requiring individuals to submit to medical testing before they are hired, and even before an offer of employment has been made. This means that employees are protected from testing in the early stages of job recruitment and interviewing.
However, both statutory and case law allow employers to require pre-employed individuals to submit to such testing. This means if a company extends you an offer of employment, the company can make your actual hiring conditional upon you completing a medical test — in other words, you won’t be able to show up for work and collect a paycheck without one.
A court would likely find such pre-employment testing to be lawful unless it was administered in a discriminatory fashion. For instance, if an employer only required non-whites to be tested for drugs, or just women to be tested for psychiatric fitness, a claim for employment discrimination may arise.
As for currently employed workers, the legality of medical testing depends upon who your boss is (as discussed in the next section), and how the testing is administered.
Whether You’re a Public or Private Employee Matters
Again, very generally speaking, New Jersey statutory law typically gives public employers like schools, governmental agencies, and police forces broad discretion to require employees to submit to medical testing. For instance, when it comes to public school employees, N.J.S.A. 18A:16-2 provides: “The board [of education] may require individual psychiatric or physical examinations of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal, physical or mental health.”
Private Employees – Safety-Sensitive Positions
For private employees, the situation is a bit trickier. When it comes to drug/alcohol testing, New Jersey, unlike many other states, has no statute regulating private employers in conducting urinalysis, breathalyzer, or other such testing on their workers.
Some guidance on the issue came from the New Jersey Supreme Court in a 1992 decision, Hennessy v. Coastal Eagle Point Oil Company, 129 N.J. 81 (1992). There, the Court ruled that a private employer’s mandatory random urine testing could feasibly violate an employee’s right to privacy, as guaranteed by the New Jersey Constitution. The Court found that if such a privacy violation occurred, it could potentially be grounds for a wrongful discharge claim.
Nevertheless, the Court was very careful to state that any privacy interest claimed by workers had to be balanced against the competing interest of the employer and general public in health and safety. Accordingly, the Court found that private employers could lawfully subject workers in safety-sensitive positions to randomized urine drug testing. The Court stated:
“If the employee’s duties are so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail” [and be allowed to test].
Given the Hennessy case, a common-sense rule of thumb applies: If your job involves driving, operating heavy machinery, working with dangerous chemicals, or any work which poses a safety threat to yourself or others, then your employer may require drug and alcohol testing.
Private Employees – Non Safety-Sensitive Positions
So where does that leave private employees who don’t work in safety-sensitive jobs? Do they have to submit to drug/alcohol testing? What about mental health testing?
The answer is — frustratingly — “it depends.” Again, New Jersey lacks any statute to spell out when and how private employers may conduct medical testing. As such, the best guidance comes from case law. Particularly helpful are cases decided under the Americans With Disabilities Act (ADA), as well as an EEOC Enforcement Guidance regarding the administration of medical exams under the ADA.
When Medical Testing is Job-Related
According to the EEOC Enforcement Guidance, private employers can conduct medical testing on workers when such testing is job-related and consistent with business necessity. The EEOC has stated that medical testing meets this standard when:
“. . . an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”
Discriminated Against in Drug Testing? We Can Help
If you feel like you’ve been discriminated against in workplace drug or medical testing, you may have an employment discrimination case. Residents of both New Jersey and New York can count on the experienced employment discrimination attorneys of Zatuchni & Associates to explain and protect their rights. Our practice areas include race discrimination, ethnic discrimination, sexual discrimination, and more.