Drug testing - New Jersey

New Jersey doesn’t regulate drug testing by statute, but the state’s marijuana laws impact drug testing and court cases have addressed the issue.

Medical marijuana

Under the Jake Honig Compassionate Use Medical Cannabis Act, employers must take specific steps when an employee tests positive for marijuana. An employer must offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result. An employer must provide written notice of the right to explain to the employee or job applicant.

An employee or job applicant has three working days after receiving this notice to submit information to explain the positive test result. An employee or applicant may request a confirmatory retest of the original sample, at the expense of the employee or job applicant. As part of an explanation for a positive test result, authorization for medical cannabis or a registry identification card may be presented.

Recreational marijuana

Employers must follow specific procedures when doing a drug test for marijuana and may not take action based on a positive drug test for marijuana unless:

• There is reasonable suspicion that an employee used marijuana while working,
• The employee is showing signs of intoxication from marijuana use,
• The test is done because of a work-related accident requiring investigation.

A drug test may also be done randomly, as part of a pre-employment screening, or as part of regular screening of current employees to determine use during an employee’s work hours.

A drug test needs to include scientifically reliable objective testing methods and procedures. This includes testing of blood, urine, or saliva. State law also calls for a physical examination to be conducted by a Workplace Impairment Recognition Expert to determine an employee’s state of impairment. That requirement has been temporarily waived as the Police Training Commission develops standards for an impairment recognition expert certification.

When proper steps are taken, the drug test result may be used to take a negative employment action including dismissal, suspension, demotion, or other disciplinary action.

Workplace Impairment Recognition Expert

After certification requirements are developed by the Police Training Commission, a Workplace Impairment Recognition Expert will need to conduct a physical evaluation to determine an employee’s state of impairment when a drug test is conducted.

The impairment recognition expert will need to have education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.

The certification can be issued to full- or part-time employees, or others contracted to perform services for an employer.

Regulations from the Police Training Commission will prescribe the minimum curriculum courses of study for the certification.

Unemployment compensation

New Jersey’s unemployment compensation law provides that unemployment compensation benefits may be denied if the suspension or discharge was for misconduct related to work. Benefits may also be denied if the employee voluntarily left work with just cause.

Workers’ compensation

New Jersey’s workers’ compensation law provides that employers are not liable for injuries or death "naturally and proximately" caused by an employee’s intoxication or unlawful use of controlled dangerous substances. Employers must be able to show that injuries were caused by the employee’s unlawful drug use or intoxication for workers' compensation benefits to be denied.

Random testing: A New Jersey Supreme Court decision has held that random drug testing is acceptable, but only for safety-sensitive positions. (Hennessey v. Coastal Eagle Point Oil, 609 A.2d 11 (N.J. 1992)). Other types of testing, such as pre-employment, post-accident, and reasonable suspicion, have not been challenged. The Hennessey decision states that an employer:

1. Should use the least intrusive test method to determine drug use;
2. Must have a policy and practice to maintain the confidentiality of test results;
3. Must warn employees in advance before implementing a drug testing program;
4. Must inform employees about which employees may be subject to testing;
5. Must explain how samples will be analyzed;
6. Must notify employees of the consequences of a positive test or of a refusal to test; and
7. Must warn employees of the lingering effects of drug use. (For example, marijuana may stay in the system for days, particularly for chronic users.)

Also, it is a criminal offense to adulterate or substitute a test specimen.