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New Jersey Case Calls Alcohol and Drug Testing Policies into Question

A recent New Jersey appeals court decision found that
ExxonMobil’s drug and alcohol policy was facially discriminatory, with
implications for similar policies maintained by other employers
. In the case in
question, an employee identified herself as a recovering alcoholic seeking
rehabilitation, and due to ExxonMobil policy, was forced to enter into a
contract that required her to submit to random drug testing and abstain from
alcohol use for a two-year period. She failed a random alcohol test conducted
pursuant to the policy, and her position with the company was terminated. The
employee brought suit alleging that the contract and her termination were
imposed only because of her disability, and that therefore Exxon’s policy was a
method of disparate treatment discrimination. The Court agreed, and ruled that
the drug-testing contract (which applied only to alcoholics) was facially
discriminatory.

Exxon’s policy mandatorily required all employees identified
as alcoholics to submit to random testing for two years after being so
identified. The Court especially took issue with the fact that the testing was
imposed not because of a job-performance issue, but because the employee
voluntarily self-identified herself as an alcoholic during a visit to a doctor.
The employee was terminated after she failed a random alcohol test with a blood
alcohol level of .04 (well under the state legal limit), with no evidence that
she consumed alcohol while on the job. An ExxonMobil manager stated (unfortunately
for the company) that her termination was completely unrelated to her
performance, and that she would have been fired even if she had been an
exceptional employee. The court found this lack of linkage to job performance
to be direct discrimination.

Exxon tried to rely on a “reasonableness” defense, based on
business necessity and workplace safety, but the defense failed because it only
applies (in NJ) to adverse impact discrimination cases, rather than disparate
treatment discrimination. Additionally, Exxon failed to make an “individualized
assessment” for the purposes of analyzing the employee’s impact on workplace
safety.

Employers should make sure that any drug and
alcohol testing policies that can result in employee termination are directly
linked to workplace performance and safety. Policies that result in immediate
termination simply due to self identification and/or testing may run the risk
of being found facially discriminatory.