Under What Circumstances May Private Employers Test Employees And Job Applicants For Alcohol And Illegal Drugs?

Employees impaired by drugs or alcohol impact workplace safety, as well as productivity. Therefore, private employers may choose to implement drug and alcohol testing program as part of an effort to maintain the safety and health of their workplace. There is no New Jersey statute that currently regulates how or when employers may test employees or applicants for drugs and alcohol. The New Jersey Supreme Court in 1992 decided the case of Hennessey v. Coastal Eagle Point Co., which has become the most-cited authority on the issue thus far. Hennessey strongly implies that common law privacy rights forbid “random” drug testing in the private sector except for employees in “safety-sensitive” positions. Employees in other positions may be tested only “for cause,” and all testing programs must conform to certain procedural due process safeguards discussed in more detail below.

SOLUTION: Generally NJ employers may conduct drug and alcohol testing under the following circumstances:

• Pre-employment testing: Courts have adopted the distinction that job applicants have lesser privacy rights than those of current employees. Therefore, New Jersey law allows employers to test employees for unlawful drugs before employment begins. Nonetheless, applicant testing programs should be in writing and applicants’ signed consent forms should be obtained prior to any testing. However, because alcohol testing is considered a medical examination under the Americans with Disabilities Act, an employer cannot request a job applicant to undergo alcohol testing before a conditional offer of employment is made.
• Reasonable suspicion/for cause testing: Employers may require employees to undergo drug and alcohol testing if the employee’s supervisor or manager has a “reasonable suspicion” based on objective factors such as thee employee’s appearance, speech, behavior, or other facts or circumstances that the employee’s supervisor personally observes.
• Post-accident testing: As set forth above, New Jersey law permits employers to test employees based on reasonable suspicion. An employee’s involvement in a workplace accident may provide the employer with reasonable suspicion to conduct a drug or alcohol test.
• Random testing: Employees occupying safety or security-sensitive positions pose a danger to themselves and to others if they work under the influence of drugs or alcohol. Therefore, employers have a legitimate business interest in requiring these types of employees to be tested on a regular or random basis.

Prior to administering testing under any of these above circumstances, it is important that the following procedural protections are incorporated into the employer’s policy:

• Testing procedures that allow for as much privacy and dignity as possible;
• Notice of the testing program that includes details about how and when employees will be selected, an explanation of how the tests will be analyzed, and advises the employee of the consequences of testing positive or of refusing to take a test;
• Written consent prior to administering the test;
• Notice that only those tests necessary to determine the presence of drugs will be administered; and
• Confidentiality provisions advising that employers shall refrain from disclosing information obtained as a result of testing outside of those on a need-to-know basis only.

Lastly, employers should make sure to train their managers and supervisors on how to implement any policy governing testing for alcohol and drug use on a uniform and consistent basis. If you have any questions concerning drug or alcohol testing in the workplace, please contact our office directly.