Q: Your employee has been performing badly and later admits that he is an alcoholic. He agrees to sign a contract in which he pledges to abstain, to submit to random alcohol tests and that if he fails such tests, he will be terminated. His performance improves. A year later, he fails a random breathalyzer test and you fire him.  Is this wrongful termination? 

 A: In A.D.P. v. ExxonMobil Research and Engineering Co., the New Jersey Appellate Division held that a similar contract was direct evidence of unlawful discrimination because only employees that were alcoholics were required to sign it and this demonstrated the employer’s hostility toward members of the plaintiff’s class (alcoholics).  In other words, policies and contracts that treat employees suffering from alcoholism less favorably than those who do not may be discriminatory.  In light of this ruling, NJ employers should review their Drug and Alcohol Abuse policies and think twice before entering into similar contracts.

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