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

New Jersey’s marijuana law, the New Jersey Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), includes protections for employees, but also allows employers to maintain a drug- and alcohol-free workplace.

State law prohibits employers from discriminating against job applicants based on their use or non-use of cannabis, and employees cannot take a negative employment action based only on a positive cannabis test. However, the state’s Cannabis Regulation Commission has not taken formal action against employers who violate CREAMMA’s employment protections. New Jersey’s marijuana law does not provide a private remedy for the law’s cannabis-related employment protections, and a U.S. appeals court confirmed that a job applicant cannot sue an employer under the state’s cannabis law.

State law allows pre-employment, random, post-accident, and reasonable suspicion tests to be conducted. Guidance on workplace impairment from the New Jersey Regulatory Commission indicates that it is a best practice for employers is to establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.

A scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action. This is because cannabis is a drug that can remain in the bodily fluids of users for a long period of time and there is no perfect test for detecting present cannabis impairment.

While state law prohibits employees from being subject to an adverse action solely due to the presence of cannabinoid metabolites in the employee’s body fluid, guidance from the New Jersey Cannabis Regulatory Commission on workplace impairment notes that:

• Employers have the right to maintain a drug free workplace consistent with the state’s marijuana law.
• Employers may require an employee to undergo a drug test upon reasonable suspicion of an employee’s usage of cannabis or cannabis products while engaged in the performance of the employee’s work responsibilities, or upon finding any observable signs of impairment related to usage of cannabis or cannabis products, or as part of a random drug test program, or following a work-related accident subject to investigation by the employer.

State law requires an evaluation to determine an employee’s state of impairment be conducted by a Workplace Impairment Recognition Expert (WIRE). The New Jersey Cannabis Regulatory Commission has been charged with developing standards for WIRE certification. Until standards are available, the state has issued guidance for employers.

To demonstrate physical signs or other evidence of impairment to support an adverse employment action against an employee suspected of cannabis use or impairment during work hours, state guidance notes that employers may:

• Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. This employee should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report and may be a third-party contractor.
• Utilize a uniform Reasonable Suspicion Observation Report that documents the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours.

The employer should establish a standard operating procedure for completing a report that involves:

• The employee’s manager or supervisor or an employee at the manager or supervisor level; and
• A staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.

An employer may also use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.

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.

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.