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Articles Posted in Employee Drug Testing

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Late last month, the New Jersey Appellate Division ruled that ExxonMobil Research and Engineering Company may have violated New Jersey Law Against Discrimination (LAD) when it fired an employee suffering from alcoholism after she failed a breathalyzer test. The LAD prohibits employers from discriminating against employees because they are disabled. Since alcoholism is a disability, it is illegal to fire an employee because he is an alcoholic. However, the LAD permits employers to fire employees if their disabilities, such as alcoholism, prevent them from performing their jobs or create a serious health risk.

bigstock-Businessman-At-His-Desk-Workin-8972239.jpgThe case, A.D.P. v. ExxonMobil Research and Engineering Company, involves an employee who voluntarily informed her employer, ExxonMobil Research and Engineering Company, that she was an alcoholic and was checking herself into an inpatient rehabilitation program. Based on company policy, ExxonMobil required her to stop from using any alcohol and to undergo random breathalyzer tests for two years. The company did this even though the employee had an exceptional performance history, and there was no evidence she was ever intoxicated at work or that her drinking interfered with her job in any way. When the employee eventually failed a breathalyzer test, ExxonMobil fired her. She then sued, claiming the company committed disability discrimination, in violation of the LAD.

The Appellate Division found there was direct evidence of disability discrimination. Specifically, a manager admitted ExxonMobil required the random drug testing pursuant to company policy because the employee revealed she is an alcoholic, rather than because of anything relating to her job performance. The Court found this policy to be discriminatory since it shows hostility toward alcoholics. Given this direct evidence of discrimination, the court ruled that ExxonMobil has the burden to prove it would have fired the employee irrespective of her disability. Usually the employee has the burden to prove discrimination.

The Court explained that companies have the right to fire employees whose disabilities prevent them from adequately performing their jobs. However, to establish this defense, a company needs to prove the particular employee could not perform her job. In this case, the court found no evidence that the employee was unable to perform her job despite her alcoholism.

The Court also explained that companies can fire employees whose disabilities create a serious health risk. But to establish this defense the company needs to prove, with a reasonable degree of certainty, there is a probability the employee’s disability will cause a substantial injury to the employee or someone else in the workplace. To meet this test the employer has to show more than the fact that the employee has a specific disability. It has to prove the disability was likely to pose a safety risk with respect to the particular employee.

For more information, please see our previous article, When Can A Private Company Require Random Drug Testing in New Jersey?

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From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

While not legally mandated, the New Jersey Supreme Court has strongly recommended that employers that have random drug testing programs should take steps to minimize the intrusiveness of the process. This includes making sure the testing procedures allow employees to maintain as much privacy and dignity as possible, and that employers announces the program to their employees in advance, provide details about the method for selecting employees to be tested, warn employees of the lingering effect of certain drugs, explain how the testing and analysis will be conducted, warn employees of the consequences of testing positive or refusing to take the test, only conduct tests necessary to determine the presence of drugs in the urine, and take measures not to disclose any information obtained as a result of the testing.

In short, while New Jersey law recognizes that random drug testing can be an invasion of privacy, testing is permitted if that privacy right is outweighed by the public interest supporting the testing. While in some instances it may be very clear that drug testing is permissible, such as when an employee operates heavy machinery or drives as part of his job duties, in many instances it is difficult to know whether a private company’s random drug testing program violates your right to privacy. If you believe your company’s random drug program may be a violation of your rights, you should consider contacting an experienced employment lawyer to learn more about your legal rights.

The lawyers at our employment law and civil rights law firm, Rabner Allcorn Baumgart & Ben-Asher, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose rights have been violated.

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