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Drug addicts just got an extra incentive to kick the habit. The New Jersey Appellate Division ruled last Monday that addiction is a handicap under the state Law Against Discrimination and thus former addicts can’t be fired for past narcotics usage. Current users, however, enjoy no such protection because they are breaking the law, the panel ruled in Bosshard v. Hackensack University Medical Center, A-7077-99. The panel, following the reasoning of the state supreme court’s precedential decision in Clowes v. Terminix Int’l Inc., 109 N.J. 575 (1988), which extended LAD protection to alcoholic employees, found no reason to treat addiction to controlled dangerous substances any differently. Monday’s ruling also comports with the federal Americans with Disabilities Act, which protects people who have been successfully rehabilitated and are no longer using drugs, whether they have done so with the help of a program or otherwise. The ADA shields from employment discrimination those who are presently in rehabilitation programs and are not taking drugs. Judge Donald Coburn, writing for the unanimous panel, called the federal approach “sensible and fair” and noted that drawing a distinction between past and present addiction also addresses the concerns of former Attorney General Peter Perretti Jr. In an opinion letter in 1989, Perretti wrote that treating drug dependency as a protected handicap would be “contrary to the legislative policies reflected in the criminal laws governing controlled dangerous substances.” Coburn, joined by Judges Dennis Braithwaite and Harvey Weissbard, also expressly agreed with Judge James Petrella’s concurring opinion, in A.B.C. v. XYZ Corp., 282 N.J. Super. 494 (1995), that current conduct of a criminal nature is not a handicap under the LAD. The plaintiff, Denise Bosshard, still lost, however, because the judges found that there were other reasons for her June 1997 firing, even though it occurred just after she had completed a drug-rehabilitation program. Though finding she could not have been fired for past drug use, the panel said that there was no evidence her supervisors knew of her heroin addiction and that the decision to discharge her was made on May 15, before she even advised the employer’s Employee Assistance Program of her drug problem. The employer had also presented evidence that it fired Bosshard because she violated hospital policy by altering medical records, an offense for which she had been suspended from her job at the time she went into the rehabilitation facility. The panel thus affirmed the lower court’s dismissal of her LAD claim Daniel Tabs, who represents the hospital, as well as nurse manager Lisa Oldham and technical supervisor Diane Moslowski, also sued by Bosshard, calls the ruling “good news for employers” even though he agrees the court “could have skirted the issue” and reached its decision on the facts alone, without addressing the issue of whether narcotics addiction qualifies as a handicap. Bosshard provides employers with some direction on “how to deal with employees who claim to have an addiction to an illegal drug,” in contrast to the previously contradictory authority on the issue, says Tabs, an associate with Roseland, N.J.’s Grotta, Glassman & Hoffman. Eileen Oakes Muskett, who also represents employers, says Bosshard will make it harder for employees to argue “they should get one free bite at the apple” by being allowed to go through a rehabilitation program if they are found to be taking drugs. Muskett is an associate with Cooper Perskie April Niedelman Wagenheim & Levenson in Atlantic City, N.J. “A lot of employers have a one-strike deal where the boss will keep it confidential and send the employee to treatment but will fire him if he falls off the wagon again,” says Arthur Raynes, a partner with Wiley, Malehorn & Sirota in Morristown, N.J., who represents employers and employees. He thinks many employers might no longer be so forbearing with drug-using employees. Bosshard’s lawyer, Kenneth Herbert, who heads a firm in Palisades Park, N.J., did not return calls seeking comment.

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