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Drug and Alcohol Policy

I.          AMERICAN WITH DISABILITIES ACT:

  1. A.    Applicant Testing

The Americans with Disabilities Act of 1990 (hereinafter “ADA”), 42 U.S.C. § 12101, et seq. limits an employer’s use medical examinations to determine if an applicant is disabled.  42 USC § 12112(d).  Specifically, the ADA provides:

(1) In general – The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.

(2) Preemployment

(A) Prohibited examination or inquiry – Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

(B) Acceptable inquiry – A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

(3) Employment entrance examination – A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if –

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that –

(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and

(C) the results of such examination are used only in accordance with this subchapter.
[42 USCS § 12112(d)]

 

“A ‘medical examination’ is a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health. Medical examinations include vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.“ EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA),  # 915.002. (7/27/00).  Alcohol test are considered medical examinations.  Id.  However, “a test to determine the illegal use of drugs shall not be considered a medical examination.” 42 USC § 12111(8).

  1. A.    Employee Testing

      According to the ADA:

(4) Examination and inquiry

(A) Prohibited examinations and inquiries – A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

(B) Acceptable examinations and inquiries – A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(C) Requirement – Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).
[42 USCS § 12112(d)(4)

 

Generally, a medical examination is “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threatdue to a medical condition.”  EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA),  # 915.002. (7/27/00).  If an employer believes that an employee poses a direct threat due to medical disability, the employer may have the employee examined.  Id.  Also, “Employers may conduct periodical medical examinations of employees work in “positions affecting public safety.”  Id.   In addition, “Employers may be able to ask employees in positions affecting public safety about their use of [prescription] medications that may affect their ability to perform essential functions and thereby result in a direct threat.”  Furthermore, “Employers . .  . may subject employees who have been in alcohol rehabilitation programs to periodic alcohol testing where the employer has a reasonable belief that the employee will pose a direct threat in absence of such testing.”  I  

  1. II.             FOURTH AMENDMENT TO THE UNITED STATES CONSITUTION :
    1. Random Drug Test

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures by the state. U.S. Const. amend. IV. In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), the United States Supreme Court held that drug testing constitutes a search within the meaning of the Fourth Amendment.  See also National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).  The reasonableness of a random drug test “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” Skinner v. Railway Labor Executives’ Ass’n, supra, at  619. (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). Further, courts will determine “the permissibility of a particular practice‘. . . by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979); (citing United States v. Martinez-Fuerte, 428 U.S. 543 (1976)). Generally, courts will random testing for public employees when safety concerns exist.   See Penny v. Kennedy, 915 F.2d 1065 (6th Cir. 1990); Guiney v. Roache, 873 F.2d 1557 (1st Cir.), cert. denied, 493 U.S. 963 (1989); Brown v. City of Detroit, 715 F. Supp. 832 (E.D. Mich. 1989); Barretto v. City of New York, 157 A.D.2d 116, 555 N.Y.S.2d 382 (1990); City of Annapolis v. United Food & Commercial Workers, 5b5 A.2d 677 (Md. 1989); See Penny v. Kennedy, supra, 915 F.2d 1065; Plane v. U.S., 750 F. Supp. 1358 (W.D. Mich. 1990); See Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989) (chemical weapons plant employees); Electrical Workers Local 1245 v. Nuclear Regulatory Commission, 966 F.2d 521 (9th Cir. 1992) (clerical employees who enter vital areas of nuclear powerplant); Bluestein v. Department of Transportation, 908 F.2d 451 (9th Cir. 1993). Notwithstanding the foregoing, a public employer cannot randomly test employees whose positions do not implicate safety hazards.  See  American Fed’n of Gov’t Employees, Council 33 v. Meese, 688 F. Supp. 547 (N.D. Cal. 1988) (drug testing program of all employees, including administrators, secretaries and other office workers held unconstitutional); Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991) (compulsory, suspicionless return to work drug testing of maintenance custodians who do not perform safety sensitive functions held unconstitutional), cert. denied, 112 S. Ct. 2281 (1992).

  1. Reasonable Suspicion Drug Test

A reasonable suspicion drug screen policy must comply with the Fourth Amendment to the United States Constitution.   According to Drake v. County of Essex, 275 N.J. Super. 585, 589 (App. Div. 1994):

Reasonable suspicion is ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ In fact, ‘[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ Moreover, ‘[t]he concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules.’ Rather, it requires an evaluation of ‘the totality of the circumstances–the whole picture.’

 

[Id. at 8, 109 S.Ct. at 1585, 104 L.Ed.2d at 10 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); Rawlings v. Police Dep’t of Jersey City, 133 N.J. 182, 191, 627 A.2d 602 (1993); United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981); Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); United States v. Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585104 L. Ed. 2d at 10 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 544 (1983)).).

Reasonable suspicion may be found based on the observations of an employee’s supervisor.  See Skinner v. Railway Labor Executives’ Ass’n, supra, at 524-33; See also Teamsters v. Federal Highway, 10 IER cases 1143 (D.C. Cir. 1995).  In this case, the JMEUC’s Drug and Alcohol Testing Policy effectively balances an employee’s rights to privacy with its interests by authorizing drug and/or alcohol test only when the employee’s supervisor reasonably suspects h/her of drug and/or alcohol use.

III.   NEW JERSEY CONSTITUTION

The JMEUC’s random drug screen policies Drug and Alcohol Policy complies with the search and seizure clause of the New Jersey Constitution, N.J. Const. art. I, ¶ 7, if employees receive said tests as part of their annual physical examination.   N.J. Const. art. I, ¶ 7 provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

The New Jersey Constitution can afford greater protection than the United States Constitution.  See Caldwell v. N.J. Dep’t of Corrections, 250 N.J. Super. 592 (App. Div. 1991).  In Int’l Fed. of Prof. & Tech. Eng. v. Burlington Cty. Bridge Com’n, 240 N.J. Super. 9 (App. Div. 1990), certif. den., 122 N.J. 183 (1990), the Court held that suspicionless testing of public employees was unconstitutional under the search and seizure clause of the N.J. Const. art. I, ¶7 unless said “random” testing is part of an annual physical exam. Accordingly, in this case, in order to comply with the search and seizure clause of the New Jersey Constitution, N.J. Const. art. I, ¶7, the JMEUC must administer its random tests to employees during their annual physical examination.

In addition, the component of the JMEUC’s Drug and Alcohol Policy that subjects an employee to a drug and alcohol test if h/her supervisor reasonably suspects drug and/or alcohol use likely complies with the search and seizure clause of the New Jersey Constitution, N.J. Const. art. I, ¶ 7.   New Jersey courts uphold drug and alcohol testing based on reasonable suspicion.  Rawlings v. Jersey City Police Department, 133 N.J. 182 (1992); Drake v. Essex County, 275 N.J. Super. 585 (App. Div. 1994).

IV. NEW JERSEY LAW AGAINST DISCRIMINATION

The New Jersey Law Against Discrimination (hereinafter “NJLAD”), N.J.S.A. 10:5-1, et seq., makes it unlawful for an employer to discriminate against an employee on the basis of h/her disability.  N.J.S.A. 10:5-12.  NJLAD recognizes alcoholism as a disability but “[t]he Law does not prohibit discrimination against the handicapped where ‘the nature and extent of the handicap reasonably precludes the performance of the particular employment.’”  Clowes v. Terminix In’t Inc., 109 N.J. 575, 594 (quoting N.J.S.A. § 10:5-4.1) (citing N.J.S.A. § 10:5-2.1 (the Law does not “prevent the termination or change of the employment of any person who in the opinion of his employer, reasonably arrived at, is unable to perform adequately his duties * * *”);
Alcoholism has to be proved by expert testimony.  Id. at 597-98.   In addition to the foregoing, NJLAD protects individuals with a history of drug addition. Matter of Cahill, 245 N.J. Super. 397 (App. Div. 1991). However, NJLAD does not protect current drug users.  Bosshard v. Hackensack University Medical Ctr., 345 N.J. Super. 78 (App. Div. 2001).  In this case, the JMEUC will violate NJLAD if it terminates an employee on the basis of h/her alcoholism.  Still, the employee has to show h/her alcoholism through the use of expert testimony.  Further, if the JMEUC can demonstrate that an employee’s alcoholism precluded h/her from performing h/her duties, JMEUC will be in compliance with NJLAD.