Most HR Professionals, at some time or another, have been required to address issues in connection with the handling of an employee who suffers from alcoholism.

Here is the typical scenario ...

An employee's performance is unsatisfactory for a number of reasons that could include missed deadlines, absenteeism, and erratic behavior.  When the employee is confronted, he/she admits to an alcohol problem and inquires as to whether the employer has an employee assistance program.  The employee agrees to undergo treatment for alcholism and hopes to return to work once the treatment program is concluded. 

You, the employer, graciously agree, but require the employee to sign what is commonly known as a "Last Chance Agreement" under which the employee agrees to refrain from the use of alcohol, agrees to submit to alcohol testing, and agrees that a failed test will result in immediate termination.

IT IS IMPORTANT TO BE AWARE THAT AN APPEALS COURT IN NJ HAS RECENTLY RULED THAT SUCH A POLICY OR PRACTICE MAY VIOLATE ANTI-DISCRIMINATION LAWS!!

So employers in New Jersey NOW need to revisit their use of Last Chance Agreements, along with their drug and alcohol testing policies to ensure they do not run afoul of NJ law.

In A.D.P. v. Exxon Mobile, the Appellate Division of the New Jersey Superior Court was asked to address whether the termination of an alcoholic employee who failed a breathalyzer test violated New Jersey's Law Against Discrimination.  In what has signaled a change in direction from existing law, the Court found that the termination did, in fact, violate the law.

The plaintiff in the case was a 29 year employee of ExxonMobile who admitted to being an alcoholic and attended an in-person treatment program.  She was asked to sign an agreement requiring that she abstain from alcohol and submit to random testing as a condition of her return to work.  The employee agreed. 

The employee submitted to and passed the breathalyzer tests for almost one year, but then failed one of the tests and was terminated as a result.  ExxonMobile conceded that there were no problems with her peformance ... that she was terminated simply for failing the breathalyzer which violated its drug and alcohol policy.

The Appellate Division concluded that such action under the facts presented constituted direct evidence of unlawful discrimination.

The Court noted that the policy was discriminatory on its face because it did not require non-alcoholic employees to abstain from alcohol, nor did it require non-alcoholic employees to undergo random alcohol testing.  The Court underscored the fact that the termination was unrelated to any performance concerns.  So, in essence, employees suffering from alcoholism were treated less favorably than those who do not.

In ligt of this ruling, it is imperative that NJ employers revisit their alcohol testing policies and re-evaluate the use of Last Chance Agreements.