The Importance Of Well Crafted Policies

January 3, 2013

Background

In A.D.P. v. ExxonMobil Research and Engineering Co., 54 A.3d 813 (N.J. Super. A.D. 2012), a 29-year employee disclosed that she was an alcoholic and that she intended to check into rehabilitation.  ExxonMobil had in place an Alcohol and Drug Use Policy (the “Policy”) which stated that “being unfit for work because of use of drugs or alcohol is strictly prohibited and is grounds for termination.”  However, the Policy also stated that “no employee with alcohol or drug dependency will be terminated due to the request for help…or because of involvement in a rehabilitation effort.”

The employee returned to work after rehabilitation and signed an after-care contract, agreeing to: (1) maintain total abstinence from alcohol; (2) actively participate in treatment; (3) maintain acceptable work performance; and (4) be subjected to periodic and unannounced alcohol and drug testing.  She eventually failed a random breathalyzer test and was terminated.

Decision

The employee filed an action in state court alleging disability discrimination under the New Jersey Law Against Discrimination (“LAD”) and wrongful termination.  The trial court granted ExxonMobil’s Motion for Summary Judgment.

On appeal, the New Jersey Appellate Division found direct evidence of discrimination by ExxonMobil – “[t]he Policy’s requirements of total abstinence and…random testing, were only imposed upon employees who identified as alcoholics, demonstrating ‘hostility toward members of the employee’s class.'”  Moreover, although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics, such as the plaintiff here, could be fired, therefore the court determined that the employer’s Policy was discriminatory on its face.

Bottom Line

Despite an Alcohol and Drug Use Policy which supported the employee’s attempt at rehabilitation and allowed her to return to work at the conclusion of this treatment, the Court ruled against the employer because the Policy subjected employees with substance abuse issues to requirements different than employees without substance abuse issues.  From the employer’s perspective, this case is the proverbial “no good deed goes unpunished.”  While the employer likely had the best interests of its employees in mind when it developed the Alcohol and Drug Use Policy, the written policy itself exposed ExxonMobil to disability discrimination claims.  This case is a cautionary tale to employers that its policies should be vetted by experienced counsel who can identify and evaluate unanticipated legal exposure from what may appear to be neutral, well-intentioned internal policies.  This message to employers is critical in a year when the United States Equal Employment Opportunity Commission secured more than $365.4 million in relief from the private sector – a record in monetary benefits collected through enforcement actions.

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