Employers Should Proceed Cautiously When Administering Drug and Alcohol Testing

Authors: Beth P. Zoller and Melissa Burdorf, Brightmine Legal Editors

A recent New Jersey case, A.D.P. v. ExxonMobil Research and Engineering, +2012 N.J. Super. LEXIS 171 (App. Div. 2012), makes clear that employers should think twice when implementing drug and alcohol testing policies to ensure they are not violating federal and state law protecting individuals with disabilities.

The case arose out of ExxonMobil's policy requiring self-identified alcoholics returning from an alcohol rehabilitation program to sign an agreement promising abstinence and agreeing to submit to random breathalyzer tests as a condition of their continued employment. The employee, A.D.P., a known alcoholic returned to work after treatment in an alcohol rehabilitation treatment center and was compelled to signed such an agreement and submit to random breathalyzer testing. After 10 months, A.D.P. was terminated for failing a random breathalyzer test even though she had no work performance issues.

The New Jersey Appellate Division determined that the termination was unlawful and the testing requirement was discriminatory because only those individuals who voluntarily disclosed that they were alcoholics were subject to random breathalyzer testing. The court noted that both federal and state law consider alcoholism a disability and therefore employers are prohibited from discriminating against alcoholics based on their alcoholism.

The court clarified that employers are permitted to take an adverse employment action (such as terminate, demote, etc.) against an employee with a disability if the disability precludes them from adequately performing their job duties or if keeping the employee in the job would create a significantly increased risk of considerable harm to the employee or his or her co-workers. In this case, however, ExxonMobil did not argue that A.D.P. was terminated for posing a safety risk or for failing to perform her job as there was no indication that A.D.P. suffered from the effects of alcohol use or had any issues with her work performance upon returning to work from rehab. Instead, A.D.P. was terminated solely on the basis that she violated the company's policy - she failed the random breathalyzer test.

The court rejected ExxonMobil's argument that the testing was reasonable because the company could not show that the testing was justified by a business necessity. Further, ExxonMobil could not show that there was a safety concern at issue because A.D.P. posed no serious threat or danger to the workplace.

This case highlights the confusion many employers face over the law's application to employees who have abused illegal drugs and those who may have struggles with alcoholism. Employers should note that under New Jersey law and under the ADA, the abuse of illegal drugs is treated differently than the abuse of alcohol. For example, a person who currently uses illegal drugs or who illegally uses controlled substances (i.e., prescription drugs) is not considered disabled under the ADA - whereas an employee who is an alcoholic is considered disabled under the ADA. Therefore, an employer may need to accommodate an employee who is an alcoholic if that employee is qualified to perform the essential functions of a job. This does not mean that an employer cannot discipline, terminate or deny employment to an alcoholic whose use of alcohol negatively affects job performance or conduct to such an extent that he or she is not qualified for the position. However, an employer may not discipline an alcoholic any more severely than it does other employees who violate company policy.

As a result of this case, employers should:

Review and if needed, revise, their drug and alcohol testing policies and make sure that such policies are not discriminatory on their face and do not impose additional conditions on employees who identify as alcoholics as this may violate both federal and state law protecting those with disabilities;
Avoid imposing different requirements or administering any type of testing (i.e., medical, alcohol, and drug) to only those individuals with disabilities (and not those individuals without disabilities) unless this can be justified by a safety concern or business necessity; and
Carefully evaluate the specific facts of each case before taking an unfavorable employment action against an individual and take into consideration that the employee or applicant may be protected by federal and state law.