ASSEMBLY, No. 2500

 

STATE OF NEW JERSEY

 

INTRODUCED NOVEMBER 14, 1996

 

 

By Assemblyman BAGGER

 

 

An Act concerning drug testing.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. 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" 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 detection level" means the level at which the presence of a drug can be reasonably detected by an initial and confirmation 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.

    "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.

    "Initial drug test" or "initial 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.

    "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.

 

    2. 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 and may use a refusal to submit to a drug test or initial positive drug test result as a basis for refusal to hire. An employer who conducts drug testing of job applicants shall notify the applicants in writing upon application, and prior to the collection of the specimen for the drug test, that the applicants may be tested for the presence of drugs.

    b. (1) An employer may require any and all employees to submit to reasonable suspicion drug testing as a condition of continued employment.

    (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 confirmation test.

    (3) If drug 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 drug 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 12 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 as a condition of continued employment 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 job applicants, as a condition of employment, or employees, as a condition of continued employment, to submit to neutral selection drug testing.

 

    3. 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 the employee or applicant 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 test. All confirmed positive drug test results shall be reviewed by a medical review officer before being used by an employer.

 

    4. a. Every specimen of an employee 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 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.

 

    5. a. An employer testing for drugs under this act shall not discharge, or request or require rehabilitation of, an employee on the basis of a positive drug test result that has not been verified by a confirmation test.

    b. In addition to the limitation pursuant to subsection a. of this section, an employer testing for drugs under this act shall not discharge 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 drug test result on a confirmation 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 shall 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.

 

    6. 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.

 

    7. 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.

 

    8. 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 an employee from his position, or transfer an employee to another position, after obtaining the results of a positive on-site initial drug test or confirmed positive drug 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.

 

    9. 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.

 

    10. 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.

 

    11. 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 drug-testing in accordance with this act.

 

    12. a. All information, interviews, reports, statements, memoranda, and test results, written or otherwise received by the employer through drug-testing 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.

 

    13. 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 confirmation 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.

 

    14. The department may 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 confirmation 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; and

    f. retention and storage procedures to ensure reliable results on confirmation tests and retests.

 

    15. 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.

    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.

 

    16. a. Any employer who complies with the provisions of this act shall not be liable in any civil action arising from any drug testing 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.

 

    17. No cause of action shall arise in favor of any person based upon the failure of an employer to establish drug testing in accordance with this act.

 

    18. 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.

 

    19. 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

 

    Under the bill, an employer may require pre-employment drug tests, drug tests for reasonable suspicion of drug use or as part of a routine medical examination for determining fitness for duty and neutral selection drug tests. All drug testing conducted by the employer in accordance with the provisions of this bill must be in conformity with the standards and procedures established in the bill and by the Department of Health. An employer may only conduct those tests necessary to determine the presence of drugs in the specimen. Also, a confirmation drug test must be of equal or greater sensitivity than used on the initial drug test. If an initial drug test is negative, there shall be no confirmation drug test.

    An employer testing for drugs in accordance with the provisions of this bill may not discharge, or request or require rehabilitation of, any employee on the basis of a positive drug test result that has not been verified by a confirmation drug test. In addition, an employer may not discharge 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 (1) the employee has an opportunity to participate in a drug abuse assessment and drug abuse rehabilitation, if necessary, and the employee refused to participate in the assessment or rehabilitation program, has failed to complete successfully such program, or has a positive drug test result on a confirmation test after completion of the program or (2) the employee's work performance has been inadequate or contributed to an accident. An employer who discharges or disciplines an employee on the basis of a confirmed positive drug test in accordance with the provisions of this bill shall be considered to have discharged or disciplined the employee for cause. If an employee refuses to submit to drug testing administered in accordance with this bill, the employer may discharge or discipline the employee or refer the employee to drug abuse assessment or rehabilitation. An employer may temporarily suspend an employee, or transfer that employee to another position, after obtaining the results of a positive on-site initial drug test or confirmed positive drug test if the employee's position could create a health or safety risk.

    The bill provides that information and documents received by an employer through drug testing pursuant to the provisions of this bill are confidential communications, except in certain circumstances.

    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.

    An employer who complies with the provisions of this bill shall not be liable in any civil action arising from any drug testing performed in compliance with the provisions of the bill. In addition, no cause of action shall arise in favor of any person based upon the failure of an employer to establish drug testing in accordance with this bill.

    The bill permits the Department of Health to adopt rules and regulations establishing standards for drug testing laboratory licensing and procedures for drug testing.

 

 

 

Concerns certain standards and liability for drug testing.