EMPLOYERS ALMOST FREE TO DRUG TEST

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.

The state chapter of the American Civil Liberties Union takes a very
different view. It sees the bill as a retreat from earlier laws safeguarding
worker privacy,

"I think it's a huge step backwards, and I think it's unconstitutional,"
ACLU staff attorney David Rocah said. "It dramatically restricts employee
rights in this area."

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 masstransit 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." 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.

"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.

Jeff Stoller, a vice president at the New Jersey Business and Industry
Association, said this is not a mat-ter of employers policing the work
force, but of employers looking out for their own legitimate interests. That
includes preventing accidents caused by addicted workers and guarding
company funds against em-bezzlement by employees with expen-sive drug
habits, he said.

"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 re-quire 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 du-ties.

"No. 1, it's expensive. Two, employers are not looking to do it. They won't
do it without a reason," Weiner said. "I'll still advise my clients that
they should have a reason. To do it without a reason will only cause bad
morale."