New Jersey employers need to re-evaluate their drug and alcohol testing policies after the New Jersey Appellate Division’s recent decision in A.D.P. v. ExxonMobil Research and Engineering Company to ensure compliance with the Americans with Disabilities Act and The New Jersey Law Against Discrimination (NJLAD).

The plaintiff, A.D.P., was an employee of ExxonMobil for 29 years. She consistently was ranked as a top performer and received at least eight promotions. In 2004, after the death of her husband, she disclosed to a Nurse at ExxonMobil that she was an alcoholic and was planning to check into a rehabilitation program. She received treatment and upon returning to work was required by ExxonMobil to sign a policy requiring her to totally abstain from alcohol and to submit to random breathalyzer tests as a condition of continued employment. The plaintiff submitted to and passed breathalyzers for 10 months, but eventually failed one breathalyzer test and was terminated. ExxonMobil explained that she was only terminated for violating the alcohol and drug policy, and not for any performance reasons.

After she was terminated, the plaintiff sued ExxonMobil under the NJLAD, N.J.S.A. 10:5-1 to -49. The Law Division granted summary judgment for ExxonMobil, but on appeal the Appellate Division found that the plaintiff presented direct evidence of unlawful discrimination based on her admitted alcoholism. According to the Appellate Division, the policy was facially discriminatory because it imposed additional conditions on alcoholic employees like A.D.P, that non-alcoholic employees were not subjected to. Specifically, non-alcoholic employees were not required to (1) totally abstain from alcohol and (2) submit to breathalyzers; yet A.D.P. was.

The court noted that the imposition of these conditions and the decision to terminate A.D.P. were unrelated to her job performance. In fact, ExxonMobil admitted that, even if she had been performing in the top one percent of her group, she still would have been terminated for failing the breathalyzer. The court found this practice to be facially discriminatory.

Based on this recent decision, employers must carefully examine their drug and alcohol testing policies. When employers impose additional conditions on an employee solely because they were an alcoholic, and then terminate that employee solely for failing to meet those conditions, they could be violating NJLAD. Thus, employers should not impose additional conditions of employment on an employee because he or she was an alcoholic; and should certainly not issue an adverse employment decision based on those conditions. Instead, prior to making any adverse employment decision, employers should conduct individualized assessments of the employee’s job performance.

An adverse employment decision can be made for a good reason, a bad reason, or no reason at all, but not for an illegal reason. And according to this decision, firing someone for failing a breathalyzer that they were only required to take because they were an alcoholic, is not a legal reason.