April 2, 2013
On February 20, 2013, the U.S. District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC") alleging that U.S. Steel's policy of conducting random breath alcohol tests on probationary employees violated the Americans with Disabilities Act ("ADA"). The Court agreed with U.S. Steel's contention that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC's Enforcement Guidance as unpersuasive.
In general, the ADA prohibits an employer from requiring an employee to undergo a medical examination (which includes an alcohol test) unless the medical examination is shown to be job-related and consistent with business necessity. In the U.S. Steel Corp. case, the Court recognized that maintaining workplace safety is a legitimate and vital business necessity, and found that U.S. Steel had met its burden of demonstrating that the policy of randomly testing probationary employees for alcohol was consistent with the business necessity of maintaining workplace safety. The Court noted that the employees at U.S. Steel's Clairton, Pennsylvania, coke manufacturing facility are in extremely safety-sensitive positions, and that some of the hazards they face include molten coke which can reach a temperature of up to 2,100 degrees Fahrenheit, dangerous heights, massive moving machinery, and superheated gasses that are toxic and combustible. In light of these work-related hazards, the Court stated that "employees must be alert at all times" and that "no level of intoxication is acceptable on the job in these circumstances."
The Court also noted that the policy of randomly testing probationary employees for alcohol was negotiated with the union representing the employees and was contained in the Basic Labor Agreement between U.S. Steel and the union. According to the Court, this highlighted the consensus by all parties that such testing was consistent with maintaining workplace safety.
The EEOC argued (citing its own Enforcement Guidance), that a medical examination is not job-related and consistent with business necessity unless the employer has a reasonable belief (based on objective evidence) that an employee's ability to perform essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition. The Court determined that the EEOC's Enforcement Guidance was not persuasive and not entitled to any deference. The Court stated:
The EEOC's vision of the ADA would defy common sense by prohibiting random alcohol testing on new employees under the counterinuitive and unsupported premise that they are not more likely to engage in risky behavior like abusing alcohol at work. Such an outcome could result in a work environment that is less safe and would do nothing to further the purposes of the ADA . . . .
Although the Court's decision in U.S. Steel is certainly a positive one for employers, the decision does not necessarily mean that all policies requiring random drug or alcohol testing in all work environments will withstand a challenge 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. In addition, employers whose employees are represented by a union should make sure to satisfy any bargaining obligations they may have under the National Labor Relations Act before implementing a drug or alcohol testing policy. Employers who are considering implementing a drug or alcohol testing policy should consult with their labor and employment counsel.