While any medical testing for employees or job candidates may invite scrutiny under the Americans with Disabilities Act (“ADA”), many employers don’t always view drug and alcohol screening the same way as they do a typical medical test.  While overlooking that connection could be a mistake, not all the skies in this area are gray, as a recent decision from a federal district judge in Pennsylvania illustrates. 

In EEOC v. U.S. Steel, the United States District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) against U.S. Steel, alleging that U.S. Steel’s policy of conducting random breath alcohol tests on probationary employees violated the ADA.  The Court agreed with U.S. Steel’s position that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC’s Enforcement Guidance publication on disability-related inquiries and medical examinations as unpersuasive.

The suit arose out of a policy applicable to employees of U.S. Steel’s coke manufacturing facility in Clairton, Pennsylvania. The coke production department at that plant produces coke by heating coal inside coke oven batteries. Entry-level new hires there generally are assigned to jobs which require that they perform tasks on or near the coke batteries, which can reach 2,100 degrees Fahrenheit.  Hazards in the department include biosludge, narrow work areas, dangerous heights, massive moving machinery, superheated gasses that are toxic and combustible, and mobile vehicles containing hot coke or bituminous coal.  Because of the hazardous working conditions, employees are required to wear layers of protective clothing that cover the entire body, including face masks.  Sounds like a comfortable place to work, right?

According to the collective bargaining agreement between U.S. Steel and the union representing their employees, newly-hired workers are subject to random drug and alcohol testing during a probationary period of 1,040 hours.  Any probationary employee who produces a positive test result during that period is discharged.  When the EEOC got wind of this policy, it sued U.S. Steel, alleging that it violated the ADA’s prohibition against employee medical examinations unless and until the employer has an individualized, reasonable suspicion of intoxication (except in cases of public safety workers – like firefighters).  The company moved to dismiss the suit arguing that its practice of randomly testing probationary employees is job-related and consistent with business necessity because it enables the company to detect alcohol impairment on the job, which exacerbates the many other hazards already existing at the plant.

In rejecting the EEOC’s arguments, the Court stated that it found nothing in the statutory text of the ADA which specifically requires employers to possess individualized suspicion that an employee presents a safety hazard before conducting a random breath alcohol test.  Likewise, the court rejected the EEOC’s position that across-the-board medical examinations of current employees can only be justified in the case of public safety employees.  The court found no legitimate basis for not extending the same rationale to employees in other safety-sensitive positions – like those in U.S. Steel’s coke plant, where supervisors may be unable to detect signs of impairment on employees who are heavily clad in protective gear that obscures employees’ faces and speech. 

The Court also concluded that U.S. Steel’s limitation on applying the random alcohol testing program only to probationary employees was justified because new employees are less skilled and more likely to engage in risky behavior, like abusing alcohol at work, than regular employees who have been on the job long enough to appreciate the risks of the workplace.  Finally, the court concluded that the random alcohol testing approach was not inconsistent with the ADA’s goal of preventing employers from targeting specific employees with disabilities based upon stereotypes, misconceptions, and unfounded fears. 

Although the court’s decision in U.S. Steel is certainly encouraging for employers in certain industries, the court’s ruling does not necessarily mean that similar policies requiring random drug or alcohol testing in all work environments will withstand scrutiny under the ADA.  Random drug or alcohol testing of employees who do not hold safety-sensitive positions may still be found to violate the ADA if it is determined that such testing is not job-related or consistent with business necessity.  Moreover, there often are disputes as to whether a particular position is a safety-sensitive one.  Due consultation with competent labor and employment counsel remains advised for employers who are considering implementing a drug or alcohol testing policy, or who wish to consider amending their policy as a consequence of this ruling.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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