May 16, 1999
From The Star-Ledger
eletters@starledger.com
http://www.nj.com/starledger/
http://forums.nj.com/
By Robert Schwaneberg, Star-Ledger Staff

Unprecedented Power Allowed By Bill Trenton Is Ready To Pass

New Jersey has long barred employers from delving too deeply into the lives of their workers, whether by asking them to submit to a polygraph or genetic test or by discriminating against those who smoke off the job.

Now the Legislature is poised to pass a bill that would make New Jersey a national leader in regulating drugtesting in the workplace. But unlike earlier laws, this bill would expand the power of employers to find out what their workers are doing on their own time.

The bill would authorize employers to force all employees, no matter what their jobs, to submit to random testing for illegal drugs. Workers whose jobs do not affect the safety of the public could not be fired the first time they flunk a drug test, as long as they undergo treatment.

"The bill tries to strike a balance," said Assemblyman Richard Bagger (R-Union), the sponsor of the legislation, which already has been passed by the Assembly.

Bagger said employee drug abuse threatens not only the profits of the employer but the careers and lives of workers should they be allowed to sink deeper into addiction. "We’re saying we want to help the employer and the employee simultaneously deal with their problem," Bagger said.

Bagger said the bill was requested by the Governor’s Council for a Drug-Free Workplace, now part of the Partnership for a DrugFree New Jersey, to clarify when and how private employers may test their workers for drugs.

Paul I. Weiner, a Livingston lawyer who has represented employers in major drug testing cases, said there is "an absolute need" for such guidance. He noted that the New Jersey Supreme Court asked the Legislature to establish rules for drug-testing almost seven years ago.

Weiner said that if Bagger’s bill is enacted, "we’ll be the only state with this far-reaching law. We’re going to be a leader, not a follower."

"It’s a first," said Sen. C. Louis Bassano (R-Union). who is sponsoring the legislation in the upper house.

In its 11 pages, the bill spells out precise standards for when and how drug testing may be conducted by private employers.

The bill establishes that all job applicants can be tested and, once hired, retested as part of a routine medical examination.

In addition, any employee can be forced to take a drug test at any time if his boss has a "reasonable suspicion" that the worker is abusing drugs. Such testing could be based, for instance, on a tip from a co-worker, or if the employee is behaving erratically or is involved in an accident.

The most controversial part of the bill concerns the drug testing of employees who show no signs of drug abuse. Federal regulations already require it for mass-transit operators and heavy-truck drivers. Many police agencies require their armed officers to submit to a system of random drug testing. But for other workers, it is legally questionable. Weiner said a few states, notably Connecticut and Vermont, ban it. Bagger’s bill would allow it.

The New Jersey Supreme Court wrestled with the issue in 1992 and unanimously concluded that random drug testing could be an invasion of privacy that entitles a worker to sue the employer. It depends, the court said, on whether the employee is performing a "safety-sensitive" job, which in that case involved controlling the flow of oil at a refinery. Finding that a spill could pollute the Delaware River or cause a catastrophic explosion, the court upheld the refinery’s decision to fire a lead pumper who had tested positive for marijuana and Valium.

The Bagger bill would not change that. Someone performing a safety sensitive job could still be forced to undergo random drug testing and fired the first time he failed or refused the test.

But unless they are covered by a union contract that forbids it, employees who are not performing safety-sensitive jobs also could be forced to provide urine, blood, hair or other samples for testing should they be picked under an employer’s "neutral selection procedure."
See
Hair Testing Draws Fire For Inaccuracy As More African Americans Disqualified
Under existing law, Bagger said, "it is uncertain how the courts would view that. He wants to encourage such testing as a way of identifying employees with drug problems and forcing them into rehabilitation.

That goes too far in the ACLU’s view.

See
Brewers Of Budweiser Hair-Test Employees To Be Sure
That They Are Not Using Any Drugs Less Dangerous Than The One They Make.

"Any employee, from the 65-year-old grandmother who’s working as an executive secretary to the nun working at a nonprofit organization, could be required to submit to a drug test, and that’s just crazy," said Rocah.

Under the bill, drug-testing laboratories would have to meet standards to be established by the state Department of Health and Senior Services.

Samples could be tested only for illegal drugs, not to determine whether an employee had a condition that would drive up the employer’s health insurance premiums. An initial test indicating drug usage would have to be confirmed by a second analysis. Test results would have to be interpreted by a physician and kept confidential.

Employers who violated those standards could be sued, while those who followed the law would be immune to lawsuits.

Rocah views the bill as a dramatic retreat from laws protecting worker privacy. The Genetic Privacy Act of 1996 forbids employers from requiring their workers to submit to genetic testing. For at least two decades, state law has made it a criminal offense for an employer to even ask a worker to take a lie-detector test unless the employee handles narcotics as part of his job.

In 1991, the Legislature made it illegal for employers to fire or otherwise discriminate against workers who smoke tobacco on their own time. The ACLU supported that bill to establish the principle that employers may not control what their workers do off the job. It sees that principle threatened by random drug testing.

"These drug tests don’t measure on-the-job impairment. They measure past use," Rocah said. "We should not turn employers into an auxiliary of the police force." He predicted that the bill, which is ready for a Senate vote and then would go back to the Assembly in amended form, will be challenged if it becomes law.

"If your treasurer has developed a heroin addiction, that is a real threat,"

Stoller said. Weiner said that if the Bagger bill passes, companies are likely to require random drug testing for employees who handle money or are in a position to cause an accident that will get the company sued. But he does not foresee random drug testing of all workers regardless of their duties.

Copyright: 1999 Star-Ledger