Safety-Sensitive Positions and Random Drug Testing by Private Employers in New Jersey

By on August 29th, 2014

Posted in New Jersey

As a general rule in New Jersey, private employers may not conduct random drug testing of current employees except employees in “safety-sensitive” positions. Notwithstanding scant authority on what constitutes a “safety-sensitive” position, it is clear that to qualify, there must be a direct and immediate nexus between the employee’s job duties and a fairly significant safety risk. Absent such a connection, an employer cannot require its employees to submit to random drug testing, though pre-employment testing and testing in light of a particularized suspicion are permissible.

The New Jersey Supreme Court’s seminal decision in Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992), limits the right of private employers to conduct random (i.e., where there is no individualized suspicion) drug-testing of current employees (i.e., not pre-employment). Specifically, the Court observed there is a public policy of privacy that may in appropriate circumstances support a so-called Pierce claim for wrongful termination. Whether an employer may terminate an employee for failing (or refusing to take) a random urine test depends on whether the employee’s individual right (privacy) outweighs the competing public interest (safety). An employer may not terminate an employee for failing (or refusing to take) a random urine test where the employee’s job is not a “safety-sensitive” position. Doing so violates a clear mandate of public policy because “[t]he public’s interest in ensuring that workers in safety-sensitive positions are drug-free outweighs any individual right to privacy.” In the context of private employment, the Court allows random drug testing of safety-sensitive employees only.

A “safety-sensitive” position is one in which “the employee’s duties are so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large.” Where such is the case, the employer may require employees to submit to random drug-testing and may take appropriate action for refusing to take or failing such test. Airline pilots, surgeons and nuclear plant workers readily fall into the category of “safety-sensitive” employees, whereas attorneys, janitors, and generic office workers typically do not. Consideration must be given to the nature of the employee’s duties, the safety risk to that employees, other employees, and the public, and the nexus between those duties and the potential for harm.

Thus, evaluating these considerations, the Court in Hennessey found the plaintiff-employee, a lead pumper at an oil refinery, was employed in a “safety-sensitive” position. In finding the employee’s duties were “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would post a threat to co-workers, to the workplace, or to the public at large,” the Court summarized the evidence of potential hazards associated with the job, highlighting that several administrators at the refinery testified about the dangerous nature of the employee’s job. The Court further noted that plaintiff himself acknowledged the potential for danger and the importance of pumpers (and the gaugers they supervise) remaining alert while on the job; when asked why care must be taken not to permit the oil tanks to overflow, the employee replied that if volatile enough, oil on the ground could cause an explosion.

Under these circumstances, it was clear that there was a direct and immediate nexus between the employee’s job duties and a safety risk / potential for harm. Since the Court’s decision in Hennessey, however, there has been a surprising dearth of New Jersey case law interpreting the parameters of what constitutes a “safety-sensitive” position of employment. Nevertheless, case law from other jurisdictions applying the same standard and upon which the Court relied suggests that random (suspicionless) drug testing of current employees of a residential apartment property manager would not be permissible and would expose the employer to potential liability for wrongful termination. For example, given the extreme hazards associated with such work, an employer is justified in requiring employees working on an oil rig to undergo drug testing. See Leudtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). On the other hand, random drug testing may not be required as to a railroad company computer programmer who works at a computer terminal all day, having “nothing to do with the actual operation of trains and no responsibility for the operation of railroad equipment.” See Luck v. So. Pac. Trans. Co., 218 Cal. App. 3d 1 (Cal. App. 1990). Under such circumstances, there is no clear, direct nexus between the employee’s duties and the nature of any feared harm. Similarly, even where an employee’s job entails the maintenance of the stock of supplies at a manufacturer of highly explosive and dangerous fuels, the employee may not be subjected to random drug testing unless the employee’s job responsibilities specifically implicate the safety of others or public safety. See Trigg v. Hercules Co., 406 S.E.2d 52 (W. Va. 1990)

Additionally, mere conceivability or “possibility” of a negative impact on public safety is not sufficient. Dealing with a similar standard applied in the public employment context, the federal court in Stanziale v. County of Monmouth, 884 F. Supp. 140, 146 (D.N.J. 1995), explained: “Disposal of the protection afforded by the individualized suspicion requirement is justified when the targeted employee’s position is such that a single misperformed duty could directly result in disastrous consequences. It is not justified, however, where the nexus between the employee’s blunder the potential injury is so attenuated as to alleviate the risk of creating irremedia[b]l[e] consequences.” Applying this standard, the court held that the plaintiff’s position as “Sanitary Inspector” for the Monmouth County Health Department did not rise to the level of “safety-sensitive.” Having reviewed the job description and responsibilities, the court recognized that “it it is conceivable that an error committed by a sanitary inspector could have a negative impact on public safety. For example, if the inspector fails to exercise proper judgment and issues a satisfactory assessment to a restaurant that in fact is not in compliance with relevant health and sanitary laws, a consumer may potentially suffer the consequences.” Notwithstanding the conceivability of a negative impact on public safety, the court found the nexus between the inspector’s duties and the potential safety risk were too attenuated; the employee’s job responsibilities did not expose him to an immediate risk of harm and did not pose an immediate threat to the public.

Based on the foregoing, whether an employee’s position qualifies as a “safety-sensitive,” thereby allowing random drug testing by the employer, must be evaluated on a case-by-case, position-by-position basis. If a particular position is one in which the employee’s job responsibilities are believed to have direct safety implications—e.g., operating heavy equipment, or handling highly-flammable substances—and there is reason to suspect drug use by employees in that position, random drug testing may be permitted, but employers should consult with counsel for a detailed evaluation and to ensure compliance with other laws and regulations.

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