ASSEMBLY JUDICIARY COMMITTEE
STATEMENT TO
ASSEMBLY, No. 2500
with committee amendments
STATE OF NEW JERSEY
DATED: MAY 1, 1997
The Assembly Judiciary Committee reports favorably and with committee amendments Assembly Bill No. 2500.
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 and Senior Services. 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 commencement of the program or (2) the employee's work performance has been inadequate or contributed to an accident. The committee amendments make provision for discharge after a confirmed positive test result for employees holding "safety-sensitive" positions. 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 and Senior Services to adopt rules and regulations establishing standards for drug testing laboratory licensing and procedures for drug testing.
The committee amended the bill to do the following:
Omit "alcohol" from the provisions of the bill by removing it from the definition of "drug".
Omit "cost effective" from the definition of "initial drug test". An employer would be free to use any approved procedure regardless of cost.
Omit public employers from the definition of "employer." The bill's provisions will be applicable to private employers.
Omit paragraph (3) in subsection b. of section 2 of the bill concerning written documentation.
Provide that employers who conduct testing in accordance with the procedures established by the bill shall establish a program to train and certify persons to collect specimens and conduct on-site tests. In the bill's original form this was not mandatory in subsection d. of section 3.
Omit the last sentence in subsection c. of section 4 concerning an employee's explanation of the test results. Omit the provision that the report shall be made part of the employee's medical and personnel records.
Provide that an employer testing for drugs may 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 if the employee holds a safety-sensitive position. "Safety-sensitive position" means a position in which the job responsibilities involve public safety or the safety of others so that the attempt to perform these duties in a state of drug impairment may pose potential danger to co-workers, the workplace or the public.
Provide that disclosure pursuant to court order is included with the exceptions for disclosure of information under the bill in section 12.
Provide that among the matters to be addressed by Department of Health and Senior Services rules or regulations is the establishment of guidelines for training and certification by employers of persons collecting specimens and conducting on-site drug tests in section 14.