Keeping Focus on Performance

A recent ruling in the case of A.D.P. v. ExxonMobil not only illustrates courts’ expanding definition of disability, but should remind employers of their limits in dealing with employees’ substance abuse problems.

In August 2007, an ExxonMobil employee—consistently ranked as a top performer throughout nearly 30 years with the company—informed her supervisors that she was an alcoholic, and would be taking leave to check into a rehabilitation program to address her alcohol dependency and depression.

At the time, there was no pending or threatened disciplinary action against her, and two representatives from the company’s HR department later testified they had only learned of the employee’s alcoholism after she had disclosed it voluntarily.

Upon her return to the job later that year, she was required to sign an agreement obligating her to abstain from alcohol and submit to random breathalyzer tests as a condition of her continued employment. Although she passed nine random tests over the next several months, a subsequent test showed a blood alcohol level between 0.04 percent and 0.05 percent. She was fired four days later.

She subsequently sued, claiming disability discrimination. The Appellate Division of the Superior Court of New Jersey ruled the testing requirement was indeed discriminatory on its face, as only self-identified alcoholics were subjected to the random breathalyzer tests.

A judge refused ExxonMobil’s motion to dismiss the case, finding the company had no safety consideration or business necessity that dictated requiring the test. The court also pointed out there were no signs the woman was suffering from the effects of her alcohol use, nor had her job performance been called into question since her return to work.

The court’s decision is “not surprising,” but holds a pair of important lessons for companies and their HR leaders, says Mark Spring, a Sacramento, Calif.-based partner in the employment law firm of Carothers DiSante & Freudenberger.

Employers and HR professionals need to make sure they are focusing on job performance [in such cases]. In this case, the employer’s focus on alcohol use—as opposed to job performance—is what got it in trouble. Had they simply implemented a reasonable suspicion testing program, allowing them to test after evidence of reasonable suspicion of on-the-job use or intoxication, this could have been avoided.”

The case also underscores the importance of treating conditions such as alcoholism and drug addiction like any other disability, says Spring.

As long as the disability is not impacting work, then the employer is going to be very limited in its ability to address any disability, including alcohol or drug addiction. I think some employers still have a hard time equating these conditions with more ‘traditional’ disabilities, and this can lead to violations such as what happened with this employer.”