In a recent decision, A.D.P. v. ExxonMobil Research and Engineering Company, the New Jersey Appellate Division held that an employer’s drug and alcohol policy requiring recovering alcoholics to submit to periodic testing to determine whether they have used alcohol since returning to work after undergoing rehabilitation constitutes handicap discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (the “LAD”). The decision presumably applies as well to recovering drug addicts. Employers with alcohol and drug policies should immediately evaluate and, if necessary, modify them in light of the Court’s decision.
Plaintiff was hired in 1978 and over the years received a number of promotions. After her husband died in 2004, she began to suffer from depression. In 2007, she voluntarily informed her employer she was an alcoholic and would be checking herself into a rehabilitation program for alcoholism and depression. After plaintiff completed the program, she was required by her employer, pursuant to its Alcohol and Drug Policy, to sign an “after care contract.” Under this contract, plaintiff agreed to maintain total abstinence from alcohol and drugs not prescribed by a physician and further agreed that she could be subject to periodic and unannounced alcohol and drug testing for a minimum of 2 years. A refusal to submit to testing could result in discipline, including termination of employment. Thereafter, plaintiff passed nine consecutive unannounced breathalyzer tests, but a tenth such test revealed blood alcohol concentration readings (BAC) of .047 and 043.3. (These readings were below the BAC threshold of 0.80 under New Jersey law for driving under the influence.) Plaintiff was terminated for violating the total abstinence provision of her “after care contract.”
Plaintiff brought suit against her former employer under the LAD, alleging that the company’s Alcohol and Drug Policy discriminated against her on the basis of her disability, i.e., her alcoholism. ExxonMobil moved for summary judgment on the grounds that its Alcohol and Drug Policy was reasonable. The motion judge granted the motion, and plaintiff appealed.
The Appellate Division’s Opinion
The New Jersey courts have long recognized alcoholism (established by sufficient medical evidence) as a disability for purposes of the LAD. The Appellate Division noted that the evidence indicated that plaintiff was terminated solely because she failed the breathalyzer test, and the Court assumed for purposes of the summary judgment motion that plaintiff’s job performance was at all times satisfactory. Also, there was apparently no contention by the employer that plaintiff had consumed alcohol while on company premises. For the Appellate Division, the issue before it was whether the employer’s abstinence and testing policies discriminated against alcoholics because of their disability. In this regard, the Court held that these policies constituted direct evidence of discrimination because they expressly targeted self-declared alcoholics and were not applied to non-alcoholics. This direct evidence of discrimination imposed on the employer the burden of establishing one of the LAD’s affirmative defenses to handicap discrimination, that is, that plaintiff was unable to perform the functions of her job or that she posed a “safety risk” to herself or to others because of her disability. As to plaintiff’s job performance, the Court ruled that ExxonMobil had not come forward with evidence concerning plaintiff’s job performance that would warrant summary judgment. As to the issue of whether plaintiff posed a safety risk, the Court ruled that ExxonMobil had not made the required individualized assessment to determine whether plaintiff had caused or would likely cause injury to herself or to others, but had simply applied a policy that made no distinction between alcohol use and alcohol abuse that would “with a reasonable degree of certainty” result in injury. Absent such an individualized assessment, there was simply no evidence that plaintiff posed a safety risk. The Court also rejected the employer’s argument that its policies constituted “a reasonable accommodation” for plaintiff’s disability. The Court reasoned that plaintiff had not asserted a failure to accommodate claim and that the employer was not contending that plaintiff could not do her job in the absence of an accommodation. The Appellate Division remanded the case to the Trial Court to give the employer an opportunity to establish any performance-based reasons for plaintiff’s termination.
It is important to note that the Court was careful to emphasize that the case did not involve, and its decision was not intended to impact, “last chance agreements.” These agreements are used by employers after an employee has demonstrated a performance problem or committed an infraction that would justify termination. Under a last chance agreement, the employee agrees to abide by a certain set of conditions, e.g., drug or alcohol treatment followed by testing, in order to keep his or her job. The Court made clear that employers are free to terminate employees who violate their last chance agreements.
The Appellate Division’s decision does not interfere with an employer’s ability to terminate employees with disabilities who cannot perform the essential functions their jobs even with accommodations or who violate prohibitions against alcohol or drug use while on the job. The decision, however, does put employers on notice that before action can be taken against employees with alcohol-related or drug-related disabilities, employers must make an individualize assessment of the employee’s performance and/or any safety-related issues that may be involved. Employers should make any necessary modifications to their drug testing policies accordingly.
For answers to questions regarding drug and alcohol polices or testing in the workplace, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.