ASSEMBLY, No. 674
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblymen BAGGER and DORIA
An Act concerning the reduction of workers' compensation premiums for employers who implement drug-free workplace programs and amending R.S.34:15-89.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "New Jersey Drug-Free Workplace Incentive Act."
2. (New section) This act provides for a reduction in an employer's workers' compensation premium if the employer has a drug-free workplace program and complies with the provisions of this act.
3. (New section) For purposes of this act:
"Alcohol" means ethyl alcohol, hydrated oxide of ethyl, distilled spirits, wine, malt beverages, and intoxicating liquors, from whatever source or by whatever means produced.
"Chain of custody" means the methodology of tracking specified materials, specimens, or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials, specimens, or substances and providing accountability at each stage in handling, testing, and sorting materials, specimens or substances and reporting test results.
"Confirmation test," "confirmed test" or "confirmed drug test" means a second drug test used to identify the presence of a specific drug or metabolite in a specimen.
"Cut-off detention level" means the level at which the presence of a drug can be reasonably detected by an initial and confirmatory test performed by a laboratory meeting the standards specified in this act. The threshold detection level indicates the level at which a valid conclusion can be drawn that the drug is present in the job applicant's or employee's specimen.
"Department" means the Department of Health.
"Drug" means alcohol, amphetamines; cannabinoids; cocaine; phencyclidine (PC); hallucinogens; methaqualone; opiates; barbiturates; benzodiazepines; synthetic narcotics; designer drugs; controlled dangerous substances and controlled substance analogs or volatile substances which produce the psychological or physiological effects of a controlled dangerous substance through deliberate inhalation or a metabolite of any of these substances.
"Employee" means any person who works for salary, wages, or other remuneration for an employer.
"Employee assistance program" means a program provided by an employer offering assessment, short-term counseling, and referral services to employees, including drug, alcohol, and mental health programs.
"Employer" means a public or private employer which has one or more employees within this State, or which has offered or may offer employment to one or more individuals in this State.
"Illegal drug" means any substance, other than alcohol, that has psychological or physiological effects on human beings and that is not a prescription or non-prescription medication.
"Initial drug test" means an immunoassay procedure or an equivalent, approved by the federal Food and Drug Administration, to identify negative and presumptive positive specimens, or any other accepted procedure that is more accurate, cost effective and approved by the federal Food and Drug Administration and the department.
"Job applicant" means a person who has applied for a position with an employer.
"Medical review officer" means a physician knowledgeable in the effects of drugs on the human body and how drugs are detected by drug tests and who is familiar with drug test technology and how such tests should be administered.
"Neutral selection" means a mechanism for selecting employees for drug tests that (1) results in an equal probability that any employee from a group of employees subject to the selection mechanism will be selected, and (2) does not give an employer discretion to waive the selection of any employee selected under the mechanism.
"Nonprescription medication" means a drug or medication authorized pursuant to federal or State law for general distribution and use without a prescription in the treatment of human disease, ailments, or injuries.
"Prescription" means a drug prescribed for use by a duly licensed physician, dentist, nurse practitioner or other medical practitioner licensed to issue prescriptions that is authorized pursuant to federal or State law for the treatment of human diseases, ailments, or injuries.
"Reasonable suspicion drug testing" means drug testing based on a belief that an employee is using or has used drugs in violation of the employer's policy. The belief shall be drawn from specific objective and articulated facts and reasonable inferences drawn from those facts in light of experience, and may be based upon, among other things:
(1) Observable phenomena, such as direct observation of drug use or the physical symptoms or manifestations of being under the influence of a drug;
(2) Abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work performance;
(3) A report of drug use provided by reliable and credible sources;
(4) Evidence that an individual has tampered with a drug test, during his employment with the current employer;
(5) Information that an employee has caused, or contributed to an accident while at work;
(6) Evidence that an employee is involved in the use, possession, sale, solicitation or transfer of drugs while working on the employer's premises or operating the employer's vehicle, machinery, or equipment.
"Specimen" means tissue, blood, breath, urine, saliva or other product of the human body capable of revealing the presence of drugs or their metabolites.
4. (New section) If an employer implements a drug-free workplace program in accordance with this act, the employer shall qualify for a reduced premium for workers' compensation insurance as provided in R.S.34:15-89.
5. (New section) A drug-free workplace program shall contain the following:
a. Written notice and a policy statement as provided in section 6 of this act.
b. Drug testing in compliance with sections 10 and 11 of this act.
c. Resources of employee assistance providers maintained in accordance with section 7 of this act.
d. Employee education as provided in section 17 of this act.
e. Supervisor training in accordance with section 18 of this act.
f. Confidentiality standards as provided in section 21 of this act.
6. (New section) a. Any employee who is required by an employer implementing a drug-free workplace program in accordance with this act to submit to a drug test shall be provided, at least 30 days prior to the implementation of a drug testing program, a written policy statement from the employer which contains:
(1) A general statement of the employer's policy on employee drug use which will include identifying both the grounds on which an employee may be required to submit to a drug test and the actions the employer may take against an employee on the basis of a confirmed positive drug test result, or other violation of the employer's drug use policy;
(2) A statement advising the employee of the existence of this act;
(3) A general statement concerning confidentiality;
(4) Procedures for employees to report confidentially the use of prescription or non-prescription medications prior to being tested;
(5) Circumstances under which drug testing may occur, and a description of which positions will be subject to testing on a reasonable suspicion, neutral selection or other basis;
(6) The consequences of refusing to submit to a drug test;
(7) Information on available resources for assessment and rehabilitation if an employee receives a confirmed positive test result. If the employer offers an employee assistance program, the statement shall include information on that program;
(8) A list of all drugs for which the employer might test. Each drug shall be described by its brand name or common name, as applicable, as well as its chemical name. Employees and job applicants shall receive notice of the most common medications by brand name or common name, as applicable, as well as by chemical name, which may alter or affect a drug test. A list of such medications prepared by the department shall be available to employers through the department;
(9) A statement regarding any applicable collective bargaining agreement or contract;
(10) A statement that an employee or job applicant who receives a confirmed positive test result may contest or explain the results to the employer within five working days after written notification of the positive test result;
(11) A statement informing an employee of the provisions of the federal "Drug-Free Workplace Act of 1988," 41 U.S.C. §701 et seq., if applicable to the employer;
(12) A statement notifying employees and job applicants of their right to consult the testing laboratory or medical review officer for technical information regarding prescription and nonprescription medication; and
(13) A warning of the lingering effect of illegal drugs in the body.
b. An employer implementing a drug-free workplace program in accordance with this act shall post the written notice in an appropriate and conspicuous location on the employer's premises and copies of the policy shall be available for inspection during regular business hours by employees in the employer's personnel office or other suitable locations.
c. An employer implementing a drug-free workplace program in accordance with this act that does not have a drug testing program in effect on the effective date of this act, shall give 30 days' notice to all employees that a drug testing program is being implemented before beginning any actual testing.
d. An employer implementing a drug-free workplace program in accordance with this act shall include notice of drug testing on all announcements for those positions for which testing is required.
7. (New section) a. An employer implementing a drug-free workplace program in accordance with this act shall maintain a resource file of providers of employee assistance including drug and alcohol abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems. In addition, the employer shall post in a conspicuous place a listing of providers of employee assistance in the area. If an employee has a confirmed positive test result, an employer shall provide information on the resource file of employee assistance to the employee.
b. If an employer implementing a drug-free workplace program in accordance with this act has more than 200 full-time employees, the employer shall maintain an employee assistance program to help employees with drug and alcohol abuse, mental health, and other personal or behavioral problems.
8. (New section) An employer implementing a drug-free workplace program in accordance with this act shall conduct the following types of drug tests:
a. If an employee has caused or contributed to an accident arising out of and in the course of employment which results in an injury or death, the employer shall require the employee to submit to a drug test.
b. If the employee in the course of employment and at the request of the employer enters an employee assistance program or a rehabilitation program as a result of a confirmed positive test, the employer shall require the employee to submit to drug testing as a follow-up to such program. The frequency of such testing shall be at least four times a year for a two-year period after completion of the program and advance notice of the testing dates shall not be given to the employee.
c. An employer shall require an employee to submit to neutral selection or routine drug tests if the employee in the course of his employment receives a confirmed positive test result, and if there is no collective bargaining agreement or contract or if the collective bargaining agreement or contract does not prohibit such testing or allows such testing.
9. (New section) An employer is authorized to conduct the following types of drug tests:
a. Employers may require job applicants to submit to a drug test as a condition of the employment application and may use a refusal to submit to a test or initial positive test result as a basis for refusal to hire. An employer who conducts job application drug testing shall notify the applicant in writing upon application, and prior to the collection of the specimen for the drug test, that the applicant may be tested for the presence of drugs.
b. (1) An employer may require all employees to submit to reasonable suspicion drug testing.
(2) There is created a rebuttable presumption that the employer had reasonable suspicion to test for drugs if the specimen provided by the employee tested positive for drugs in a confirmatory drug test.
(3) If testing is conducted based on reasonable suspicion, the employer shall promptly detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the employer pursuant to section 21 of this act and retained by the employer for at least one year.
c. An employer may require an employee to submit to a drug test if the test is conducted as part of a routinely scheduled employee fitness for duty medical examination that is part of the employer's established policy or which is scheduled routinely for all members of an employment classification or group.
d. An employer may require as a condition of employment or as a condition of continued employment that employees submit to neutral selection drug testing.
10. (New section) a. All drug testing conducted by an employer in accordance with the provisions of this act shall be in conformity with the standards and procedures established in this act.
b. All specimen collection and testing for drugs under this act shall be performed in accordance with the following procedures:
(1) The collection of specimens shall be performed under reasonable and sanitary conditions. Individual dignity shall be preserved to the extent practicable;
(2) Specimens shall be collected in a manner reasonably calculated to prevent substitution of specimens and interference with the collection or testing of specimens;
(3) Specimen collection shall be documented, and the documentation procedures shall include:
(a) labeling of specimen containers to reasonably preclude the likelihood of erroneous identification of test results; and
(b) an opportunity for the employee or applicant to provide any information that he considers relevant to the test.
(4) Specimen storage and transportation to the testing site shall be performed in a reasonable manner to preclude specimen contamination or adulteration; and
(5) Specimen testing for drugs shall conform to scientifically accepted analytical methods and procedures.
c. A specimen for a drug test under this act may be taken or collected by any of the following persons:
(1) A physician, a physician's assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a trained attendant deemed qualified by the employer;
(2) A qualified person employed by a licensed laboratory; or
(3) A certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment.
d. Employers may establish a program to train and certify persons to collect specimens and conduct on-site drug tests in the workplace. Employers may designate employees for this training and certification, or may utilize any person so trained and certified.
e. A person who collects or takes a specimen for a drug test conducted pursuant to this act shall collect an amount sufficient for two drug tests as defined by the department.
f. Any drug testing conducted or requested by an employer under this act shall occur during or immediately after the regular work period of current employees, and shall be deemed to be performed during work time for purposes of determining compensation and benefits for current employees.
g. An employer testing for drugs under this act may only conduct those tests necessary to determine the presence of drugs in the specimen.
h. A confirmation test shall use a method of equal or greater sensitivity than that used on the initial drug test. If an initial drug test is negative, there shall be no confirmation drug test. All confirmed positive drug test results shall be reviewed by a medical review officer before being used by an employer.
11. (New section) a. Every specimen that produces a confirmed positive result shall be preserved in a frozen state for a period of 90 days from the time the results of the confirmed positive test are mailed or otherwise delivered to the employer. During this period, the employee who has provided the specimen shall be permitted by the employer to have a portion of the specimen retested, at the employee's expense, at a licensed laboratory chosen by the employee. The licensed laboratory or employer that has performed the test for the employer shall be responsible for the transfer of the portion of the specimen to be retested, and for the integrity of the chain of custody during such transfer.
b. Within five working days after receipt of a confirmed positive test result, an employer shall, in writing, inform an employee of such positive test result and inform the employee in writing of the consequences of such a report and the options available to him.
c. An employee may request and receive from the employer a copy of the test result report. Within 10 working days after receiving notice of a confirmed positive test result, the employee may submit information to an employer explaining the test results, and why the results do not constitute a violation of the employer's policy. If an employee's explanation of the positive test results is not satisfactory to the employer, a written explanation submitted by the employer as to why the employee's explanation is unsatisfactory, along with the report of positive results, shall be made part of the employee's medical and personnel records.
12. (New section) a. An employer testing for drugs under this act may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result that has not been verified by a confirmatory test.
b. In addition to the limitation pursuant to subsection a. of this section, an employer testing for drugs under this act may not discharge, discipline, or discriminate against an employee for whom a confirmed positive drug test result was the first time the employee has tested positive for any drug while in the employ of the employer unless the following conditions have been met;
(1) the employer has first given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under an employee benefit plan, drug abuse assessment, and if necessary, drug abuse rehabilitation, and
(2) the employee has either refused to participate in the assessment or rehabilitation program or has failed to successfully complete such program, as evidenced by withdrawal from the program before its completion or a report from the program indicating unsatisfactory compliance, or by a positive test result on a confirmatory test after completion of the program; or
(3) the employee's work performance has been inadequate, or the employee has caused or contributed to an accident, or the employee has taken or omitted to take any other action which ordinarily would result in the discharge or discipline of the employee.
c. An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of medical history information revealed to the employer pursuant to this act unless the employee had an affirmative obligation to provide such information before, upon, or after hire.
13. (New section) An employee or job applicant whose drug test result is positive in accordance with the provisions of this act shall not, by virtue of that result alone, be defined as a person with a "disability or handicap."
14. (New section) a. An employer who discharges or disciplines an employee on the basis of a confirmed positive drug test in accordance with this act shall be considered to have discharged or disciplined the employee for cause.
b. An employee discharged on the basis of a confirmed positive drug test in accordance with this act shall be considered to have been discharged for willful misconduct under State law.
15. (New section) a. If an employee refuses to submit to drug testing administered in accordance with this act, the employer shall not be barred from discharging, disciplining, or referring the employee to assessment or drug abuse rehabilitation.
b. An employer may temporarily suspend, or transfer an employee to another position after obtaining the results of a positive on-site initial test or confirmed positive test if the employee's position is one which would create a health or safety risk to the employee, to fellow employees, or to the public, should the employee be affected by the use of a drug.
16. (New section) An employee or job applicant required to submit to a drug test under this act may be requested by an employer to sign a statement indicating that he has read and understands the employer's drug testing policy and notice. An employee's or job applicant's refusal to sign such a statement shall not invalidate the results of any drug test, or bar the employer from administering the drug test or from taking action consistent with the terms of an applicable collective bargaining agreement or the employer's drug testing policy, or from refusing to hire the job applicant.
17. (New section) a. An employer implementing a drug-free workplace program in accordance with this act shall provide all employees with a semi-annual education program on substance abuse, in general, and its effects on the workplace, specifically.
b. The education program shall be for a minimum of one hour and shall include, but is not limited to, the following information:
(1) The explanation of the disease model of addiction to drugs;
(2) The effects and dangers of the commonly abused substances in the workplace; and
(3) The employer's policies and procedures regarding substance abuse in the workplace and how employees who wish to obtain substance abuse treatment can do so.
18. (New section) An employer implementing a drug-free workplace program in accordance with this act shall provide all supervisory personnel with a minimum of two hours of supervisor
training, which shall include, but is not limited to, the following information:
a. How to recognize signs of employee drug abuse;
b. How to document and collaborate signs of employee drug abuse;
c. How to refer employees who abuse drugs to the proper treatment providers.
19. (New section) The employer shall pay the costs of all drug tests under this act to which it requires, or requests, an employee or job applicant to submit.
20. (New section) No physician-patient relationship is created between an employee or job applicant and an employer, medical review officer, or any person performing or evaluating a drug test solely by the establishment, implementation, or administration of a drug-testing program in accordance with this act.
21. (New section) a. All information, interviews, reports, statements, memoranda, and test results, written or otherwise received by the employer through its drug-testing program under this act are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceedings, except in accordance with this act.
b. Any information obtained by an employer pursuant to this act shall be the property of the employer.
c. An employer shall not release to any person other than the employee or job applicant, or employer medical, supervisory, or other personnel, as designated by the employer on a need-to-know basis, information related to drug test results under this act unless:
(1) The employee or job applicant has expressly, in writing, granted permission for the employer to release such information; or
(2) It is necessary to introduce a confirmed positive test result into an arbitration proceeding pursuant to a collective bargaining agreement, an administrative hearing under applicable State or local law, or a judicial proceeding, provided that the information is relevant to the hearing or proceeding, or the information must be disclosed to a federal or State agency or other unit of this State or United States government as required under law, regulation, or order, or in accordance with compliance requirements of a State or federal government contract, or disclosed to a drug abuse rehabilitation program for the purpose of evaluation or treatment of an employee; or
(3) There is a risk to public health or safety that can be minimized or prevented by the release of such information. Unless such risk is immediate, a court order permitting the release shall be obtained prior to the release of the information.
d. The confidentiality provisions of this section shall not apply to other parts of an employee's or job applicant's personnel or medical files.
e. If an employee refuses to sign a written consent form for release of information to persons as permitted in this act, the employer shall not be barred from discharging or disciplining the employee.
22. (New section) a. Five days after a drug test has been completed by a laboratory, the laboratory shall report to the employer the result of the test.
b. A laboratory or employer report of a drug test result under this act shall, at a minimum, state:
(1) The name and address of the laboratory that performed the drug test and the positive identification of the person tested;
(2) Any confirmed positive drug test results on a specimen which tested positive on an initial test, or a negative drug test result on a specimen. Reports shall not make reference to initial or confirmatory tests when reporting positive or negative results;
(3) A list of the drugs tested for; and
(4) The type of tests conducted for both initial and confirmation tests and the cut off detection levels of the tests.
c. The report shall not disclose the presence or absence of any physical or mental condition or of any drug other than the specific
drug and its metabolites that an employer requests to be identified.
23. (New section) The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c. 410 (C.52:14B-1 et seq.), rules and regulations to implement this act by establishing:
a. standards for drug testing laboratory licensing, suspension, and revocation of a license;
b. specimens that are appropriate for drug testing;
c. methods of analysis and procedures to ensure reliable drug testing results, including standards for initial and confirmatory tests and on-site tests;
d. guidelines on how to establish cut-off detection levels for drugs or their metabolites for the purposes of determining a positive drug test result;
e. chain-of-custody procedures to ensure proper identification, labeling, and handling of specimens being tested;
f. retention and storage procedures to ensure reliable results on confirmation tests and retests;
g. procedures for employers who perform on-site initial tests;
h. a list of medications pursuant to paragraph (8) of subsection a. of section 6 of this act; and
i. a certification program to determine the compliance of employers with the provisions of this act, an inspection system that reviews an
employer's compliance at least three times annually, and provisions to revoke the certification of employers that do not comply.
24. (New section) a. Upon a violation of any of the provisions of this act, an aggrieved job applicant, employee or former employee may, within six months of the violation or the exhaustion of any internal administrative remedies available to the aggrieved party, institute a civil action in a court of competent jurisdiction to obtain relief. The court may order one or more of the following:
(1) An injunction to restrain the continued violation of this act;
(2) The reinstatement of the person to the same position held before the unlawful drug testing, disciplinary action or discharge, or to an equivalent position;
(3) The reinstatement of full employee benefits and seniority rights;
(4) Compensation for lost wages, benefits and other remuneration to which the person would have been entitled but for a violation of the act;
(5) Payment by the employer of reasonable costs of suit.
b. For the purposes of this act, damages shall be limited to the recovery of compensatory damages directly resulting from injury or loss caused by a violation of this act, and shall not include noneconomic losses.
c. A person or collective bargaining agent may bring an action under this section only after first exhausting all applicable grievance procedures and arbitration proceeding requirements under a collective bargaining agreement; provided that, the person's right to bring an action under this section shall not be affected by a decision of a collective bargaining agent not to pursue a grievance.
25. (New section) a. Any employer who complies with the provisions of this act shall not be liable in any civil action arising from any drug testing programs or procedures performed in compliance with this act.
b. Pursuant to any claim alleging a violation of this act, including a claim under this act in which it is alleged that an employer's action with respect to a person was based on an incorrect drug test result, there shall be a rebuttable presumption that the test result was valid if the employer complied with the provisions of this act.
c. No cause of action for defamation of character, libel, slander, or damage to reputation shall arise in favor of any person against an employer who has established a program of drug testing in accordance with this act, unless:
(1) information regarded as confidential is released not in accordance with an information release form signed by the person or otherwise not in accordance with this act;
(2) the information disclosed was based on an incorrect drug test result;
(3) the incorrect drug test result was disclosed with malice; and
(4) all other elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or common law, are satisfied.
26. (New section) No cause of action shall arise in favor of any person based upon the failure of an employer to establish a program or policy for drug testing in accordance with this act.
27. (New section) The drug testing procedures provided in this act do not apply if the specific work performed requires employees or job applicants to be subject to drug testing pursuant to:
a. federal regulations that specifically preempt State and local regulation of drug testing with respect to such employees and job applicants;
b. federal regulations or requirements enacted or implemented in connection with the operation of federally regulated facilities;
c. federal contracts where the drug testing is conducted for safety, or protection of sensitive or proprietary data or national security; or
d. State agency rules that adopt federal regulations applicable to the interstate component of a federally regulated activity.
28. (New section) Nothing in this act shall be construed to prevent an employer from establishing reasonable work rules related to an employee's possession, use, sale, or solicitation of drugs, including convictions for drug related offenses, and taking action based upon a violation of any of those rules.
29. (New section) Nothing in this act shall be construed to operate retroactively, and nothing in this act shall abrogate the right of an employer under State and federal law to conduct drug tests, or implement employee drug-testing programs; provided, however, only those programs that meet the criteria outlined in this act qualify for reduced workers' compensation insurance premiums pursuant to R.S.43:15-89.
30. (New section) This act does not prohibit an employer from conducting medical screening or other tests required by any statute, rule, or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy substances in the workplace or in the performance of job responsibilities. Such screenings or tests shall be limited to the specific substances expressly identified in the applicable statute, rule, or regulation, unless prior written consent of the employee is obtained for other tests.
31. R.S.34:15-89 is amended to read as follows:
34:15-89. The compensation rating and inspection bureau as created and established by the act entitled "An act concerning the compulsory insurance of compensation payments arising under section 2 of an act entitled "An act prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder,' approved April 4, 1911," approved March 27, 1917 (P.L.1917, c.178, p.522), as amended and supplemented is continued under the supervision of the Commissioner of Banking and Insurance.
It shall establish and maintain rules, regulations and premium rates for workmen's workers' compensation and employer's liability insurance and equitably adjust the same, as far as practicable, to the hazard of individual risks, by inspection by the bureau.
It shall adopt means for assuring uniform and accurate audit of payrolls as they relate to policies of workmen's workers' compensation and employer's liability insurance by auditors, appointed by the bureau, with the approval of the said commissioner or by such other means as the bureau may, with the approval of the Commissioner of Banking and Insurance, establish.
It shall furnish upon request to any of its members or to any employer upon whose risk a rating has been promulgated by it, information as to such rating, including the method of its computation, and shall encourage employers to reduce the number and severity of accidents by adjusting premiums and rates, through the use of credits and debits or other proper factors, under such uniform system of experience or other form of merit rating as may be approved by the said commissioner.
The compensation rating and inspection bureau shall reduce the workers' compensation premiums paid by an employer that implements a drug-free workplace program which complies with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill.), which compliance shall be annually certified by the Department of Health. The premium reduction shall be 5% during the period of compliance or for three years, whichever date is earlier. Thereafter, the premium reduction shall be determined from the employer's experience rating plan or, if the employer is not experience rated, from the rating and statistical plan designed by the bureau.
(cf: P.L.1955, c.108, s.1)
32. This act shall take effect on the 180th day after enactment, except that any rules and regulations to implement the provisions of this act may be promulgated prior to the effective date.
STATEMENT
This bill provides for a reduction in an employer's workers' compensation premium if the employer has a drug-free workplace program that complies with the provisions of this bill.
Under a drug-free workplace program the employer must: give certain written notices and policy statements on drug usage and drug testing to his employees; follow certain drug testing procedures; provide certain counseling and treatment resources to employees; provide to employees and supervisors certain substance abuse education; and comply with certain confidentiality standards.
An employer implementing a drug-free workplace program in accordance with this act must conduct drug tests of employees who: have caused or contributed to accidents in the workplace; have a confirmed positive drug test and have entered and been released from a rehabilitation program; and have received a confirmed positive test result under certain circumstances.
An employer implementing a drug-free workplace program in accordance with this act may also require certain other drug tests, such as drug tests for job applicants, for reasonable suspicion of drug use, and as part of a routine medical examination for determining fitness for duty.
An employer implementing a drug-free workplace program in accordance with this act may not discharge, discipline, discriminate against, or request or require rehabilitation of any employee on the basis of a positive drug test result that has not been verified by a confirmatory test.
Upon a violation of any provision of the bill, an aggrieved job applicant, employee or former employee may institute an action in court to obtain relief. The court may order one or more of the following:
(1) An injunction to restrain the continued violation of the provisions of the bill;
(2) The reinstatement of the person to the same position held before the unlawful drug testing, disciplinary action or discharge, or to an equivalent position;
(3) The reinstatement of full employee benefits and seniority rights;
(4) Compensation for lost wages, benefits and other remuneration to which the person would have been entitled but for a violation of the provisions of the bill;
(5) Payment by the employer of reasonable costs of suit.
The bill requires the Department of Health to adopt rules and regulations establishing standards for: drug testing laboratory licensing; procedures for drug testing; and a certification program administered by the department to determine employer compliance with the provisions of this bill.
"New Jersey Drug-Free Workplace Incentive Act."