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    Alcoholism under the LAD

    Most people know that employment discrimination on the basis of disability is prohibited. But, not many people know that under both New Jersey Law Against Discrimination (“LAD”) and Federal Americans with Disabilities Act (“ADA”) alcoholism and drug addiction is considered a disability, and that it is therefore unlawful for an employer to terminate or otherwise discriminate against an employee on the basis of the employee’s alcoholism or drug addiction.(1) 

    In determining whether an employer is liable for discrimination under the ADA and LAD, it is important to understand that there is a legal difference between alcoholism – which is the disease and which may not be the basis for an employer’s discrimination – and being intoxicated while on the job – which is a symptom of the disease and which absolutely may be the basis for termination.  This can be a tricky distinction for courts, let alone employees and employers, to make.

    First, an employer accused of disability discrimination may offer a legitimate, non-discriminatory reason for the termination.  The employer does this by pointing to some deficiency in performance that is unrelated to the disability. Once the employer makes that argument, it is up to the employee to show that the reason offered is pretext, which the employee can do in a variety of ways depending upon the reason offered by the employer.

    Second, an employer may present a “safety defense” by arguing that the alcoholic employee cannot do his or her job “without posing a serious threat of injury to the health and safety of himself . . . or other employees.”(2)  This “safety defense” is an affirmative defense, meaning that the employer has the burden to prove it applies.  To show the safety defense applies, the employer must prove not only that it had “a reasonable degree of certainty . . . that the employee’s handicap presented a materially enhanced risk of substantial harm in the workplace,” but also “that the handicap will probably cause such an injury.”(3)   The safety defense is an extremely fact-sensitive analysis; it requires more than merely pointing to a disability and assuming that harm may result.(4)  Rather, the employer must show that it made “an individualized assessment of the safety risk, which must include objective medical evidence as well as relevant records such as the employee’s work and medical histories.”(5)

    These issues, while notable, are far from the only issues to consider when assessing a discrimination claim.  An employer may argue, among other things, that there is a “business necessity” justifying termination, or that there was no reasonable accommodation available.  Each discrimination case must be viewed on a case-by-case basis; however, there are two general takeaways that you may find helpful. The first is that while employees cannot be fired or otherwise discriminated against because they are alcoholics or drug addicts, they can still be fired if the addiction inhibits the employee’s ability to perform the essential functions of the job or if the employer is able to show that continued employment presents a special danger.  The second is that any case involving disability discrimination on the basis of alcoholism or drug dependency is exceptionally fact sensitive, and requires a skilled and experienced employment attorney to navigate. It is therefore highly recommended that you seek legal advice if you find yourself in this situation. If you have any questions and/or would like to discuss your case with an experienced and skilled employment attorney, do not hesitate to call Attorneys Hartman for advice and assistance.

    1. See, e.g., Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 593-94 (1988).
    2. A.D.P. v. ExxonMobil Research and Eng’g Co., 428 N.J. Super. 518, 538-39 (App. Div. 2012) (quoting Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988)).
    3. Id. (emphasis in original).
    4. Id. at 539. It is also worth noting to the practitioner here that these are considered extremely fact sensitive questions, and as such “do not generally lend themselves to disposition by summary judgment.”
    5. Id. at 539-40 (quoting Barbera v. DiMartino, 305 N.J. Super. 617, 632 (App. Div. 1997)).



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