By Tom Chaves on November 12, 2012

A New Jersey Appellate Court reinstated a terminated employee's disability bias lawsuit over a positive alcohol test. Under New Jersey law, alcoholism is a protected disability which an employer cannot use as a basis alone to either discriminate against an employee or terminate the employee. The rationale for this protection is that alcoholism is an illness which can be treated and therefore it would be unlawful for an employer to discriminate against someone who was in treatment and/or had recovered and whose job performance was not affected. Obviously, if an employee's alcoholism affects an employee's work performance, the poor work performance would be a lawful ground to terminate the employee.

The recent Appellate case involved a woman who worked for ExxonMobil for 30 years until she was fired in 2008. In 2007, she revealed to ExxonMobil that she was an alcoholic and intended to seek in patient treatment at Carrier Clinic in Belle Meade, NJ for three weeks followed by outpatient treatment at the Hunterdon Medical Center in Clinton. ExxonMobil required her to sign an "after-care" contract as a condition of returning to employment. This contract involved her submitting to random Breathalyzer testing, followed by three years of monitoring. Either a positive alcohol test or refusal to take a test would result in her termination.

The employee passed the first nine random tests but then two tests found blood alcohol readings of .047 and .043 both of which are roughly half the legal limit for DWI of .08. The Appellate Court reversed the decision of the trial court which dismissed the case in that it found that she had made a prima facie case of discrimination because the requirements of total abstinence and two years of random testing were not imposed on other employees. It should be noted that the employee did not win her case but only had the dismissal reversed which allows her case to continue. A jury may ultimately find that she was not discriminated against but she has a strong case in that there is no evidence that her work performance was ever affected and she had always received promotions and raises.

People should understand that the New Jersey Law against Discrimination is very broad and gives workers protections they may not even be aware of. Thus, a lot of people are probably not aware that alcoholism is considered a disability which is protected against discrimination. If you believe that you are wrongfully terminated, you should immediately hire a lawyer to advise you what your rights are. You may be entitled to sue for discrimination and not even know it.