Your Rights in the Workplace: Drug and Other Workplace Testing

According to Grand View Research, Inc., the global drug testing market is predicted to be valued at $11.7 billion by 2028. Workplace drug testing has been commonplace for people in many industries for years, due, in part, to the stigma around drug and alcohol use.

New Jersey and many other places in the United States have legalized recreational drug use, which can complicate testing incentives and schedules.

When it comes to workplace drug testing, you have your rights. The knowledgable employment attorneys at McOmber McOmber & Luber can explain your rights and help you keep your job and keep employees safe in the workplace.

What Are Recreational Drug Use Laws in NJ?

New Jersey legalized recreational marijuana use on August 19, 2021. The law is called the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization (CREAMM) Act. Adults aged 21 and older are now able to carry, purchase, and use cannabis legally.

This act does not discuss hiring practices around marijuana use. However, New Jersey passed a provision  stating that employers must not take any disciplinary action against any employee  who uses cannabis items of any kind. In addition, no disciplinary action may be taken against an employee who has a positive test of any kind for cannabis use.

Employers may only act against an employee if there is reasonable suspicion that the employee has used or been impaired by cannabis use on the job.  A reasonable suspicion must be determined by a certified Workplace Impairment Recognition Expert (WIRE). However, as of July 22, 2022, no regulations are in place for certifying WIRE employees.

What Are the Different Types of Workplace Drug Testing?

There are many different types of workplace drug testing.  Drugs an employer can test for, include but are not limited to:

• Cannabis/THC
• Amphetamines (which can include methamphetamine and MDMA, otherwise known as ecstasy)
• Cocaine
• Opiates (such as heroin, morphine, codeine, oxycodone, etc.)
• Phencyclidine, otherwise known as PCP

There are also different methods employers may use to test for these types of drugs, each with its own pros and cons.

Urinalysis

Urinalysis is the technical term for urine testing. This is the least invasive and the most used test.

This method tests for metabolites in a person’s system. Metabolites are residues from drugs that indicate a person has taken those drugs in the recent past. For occasional drug users, metabolites may appear up to one week after the drug was taken – for frequent users, they may stay in your system for a month or more.

It’s important to note that urinalysis does not show whether a person is under the influence at the time of testing, which is why it should not be used to determine disciplinary action.

Hair Testing

Hair testing is the most accurate form of drug testing. The test can still detect drug use even with dyed, cut, or bleached hair. Hair testing can detect drugs in a person’s system for up to 90 days after use.

It is also the test that can provide the most specific information, including what drug a person took, how long they took it, and when they discontinued their drug use.

Oral Fluid Testing

Oral fluid testing is when you use a mouth swab to collect a saliva sample. These are cost-effective and quick, and you can complete them at work easily. They are best for determining drug use from a few minutes to up to 48 hours prior.

Consent

Employers may only administer drug and alcohol tests with their employees’ consent. Consent to drug testing may only be in written form and multiple consent forms are needed for alcohol, drugs, and other testing.

If you are already working for a company when it introduces drug and alcohol testing, you do not have to agree to these changes. Testing must be in an employee’s contract when they agree to the terms of employment.

If you refuse a test and an employer still tries to make you take one, you may resign and claim ‘  your reason of unemployment. Constructive dismissal is when a worker leaves their job due to inappropriate employer conduct.

Impact on Employers

Employers may not refuse employment solely on an applicant’s use of recreational or medical marijuana. Employers also may not refuse employment based on previous marijuana charges, arrests, or convictions.

Violating these laws result in a fine of $1000 for the first offense, $5000 for the second offense, and $10,000 for each further offense. These are currently the only penalties in place for violating this provision.

There is still much gray area in the laws surrounding marijuana use in the workplace. However, it is possible in the future that taking disciplinary action against employees due to marijuana use can count as workplace discrimination.  We encourage employers to seek legal counsel before taking disciplinary action against marijuana users.

Employers are allowed to conduct drug tests randomly, on reasonable suspicion of drug use in the workplace, prior to employment, or after accidents. The drug test must be one of the scientifically reliable tests listed above, and a WIRE-certified employee must conduct the testing.

Always Know Your Rights

The new marijuana laws in New Jersey mean that workplace drug testing is trickier than in previous years. However, staying informed about these laws will help you take the correct actions as both an employer and a worker.

When you need counsel in New Jersey, look no further than McOmber McOmber & Luber for all your legal needs. Contact us by phone or on our website for a free consultation with our experienced lawyers today.