A New Jersey appellate court recently held that an employer’s drug and alcohol use or testing policy could provide the basis for disability discrimination claims under the New Jersey Law Against Discrimination (NJLAD).

On October 26, 2012, a panel for the New Jersey Superior Court, Appellate Division unanimously reversed a lower court’s grant of summary judgment to an employer for terminating an employee on the basis of a failed breathalyzer test. A.D.P. v. ExxonMobil Research and Engineering Co., No. A-4806-10T4 (N.J. Super. Ct. App. Div. Oct. 26, 2012). The employee, after voluntarily disclosing that she was an alcoholic and subsequently completing outpatient treatment, was required to sign an after-care contract in which she agreed to submit to random alcohol testing for two years. Having passed nine tests in a ten-month period, the employee failed a tenth and was terminated on that basis.

In reversing summary judgment for the employer, the Appellate Division held that the company’s requirement that the employee submit to random alcohol testing because she voluntarily disclosed that she was an alcoholic was facially discriminatory and constituted direct evidence of discrimination. The court found significant proof that employees who were not identified as alcoholics were not subject to the same policy, thus “demonstrating hostility toward members of the employee’s class.”

The court also rejected both affirmative defenses proffered by the employer. First, the court rejected the employer’s “business necessity” defense, noting that it is only available in disparate impact cases, and not disparate treatment cases such as this. The court then rejected the employer’s “safety” defense, which allows an NJLAD defendant to consider whether a disabled person can perform her job without posing a threat of injury to herself or others. Specifically, the court held that the employer did not conduct the required “individualized assessment of the safety risk” posed by the employee’s alcohol use, noting that the after-care contract made no distinction between use and abuse and failed to justify a conclusion that any alcohol use by the employee would pose a safety risk.

In light of this decision, New Jersey employers should carefully reevaluate their drug and alcohol use and/or testing policies to ensure that they do not facially discriminate against any particular class of persons, such as recovering drug addicts or alcoholics. Additionally, employers should evaluate the implementation of such policies — even those which are facially neutral — to ensure that they have no disparate impact. Finally, in order to justify random drug or alcohol testing of an employee, employers must be sure to conduct an individualized assessment of the safety risks posed by the employee. Such an assessment should account for factors such as the safety risks associated with the employee’s position, the consequences of the employee’s impaired ability to perform his/her job, and how recently events occurred that have caused the employer to believe that the employee poses a safety risk. Employers must also ensure that the scope of the testing — for example, its duration and frequency — is carefully tailored to address the particular safety concerns at issue.