Random tests for alcohol performed on probationary employees who work in safety-sensitive positions do not violate the Americans with Disabilities Act (ADA), a district court ruled.
The U.S. District Court for the Western District of Pennsylvania dismissed the Equal Employment Opportunity Commission’s (EEOC) case against U.S. Steel Corp. over random alcohol testing for new employees at a plant in western Pennsylvania.
The decision in EEOC v. United States Steel Corp., No. 10-CV-1283 (W.D. Pa. Feb. 20, 2013), marks the first time that any court has addressed this issue and could serve as a reference point for employers accused of discrimination through their use of medical examinations.
“Employers can view the U.S. Steel decision as a very important affirmation of their right to take reasonable steps to ensure a safe workplace,” said Robin Shea, a partner at employment law firm Constangy, Brooks & Smith, based in Winston-Salem, N.C.
But employers shouldn’t get too carried away, she told SHRM Online. “I would expect the EEOC to appeal, and if it does, it is possible that the U.S. Court of Appeals for the 3rd Circuit will reverse and will choose to follow the EEOC’s guidance on random alcohol testing.”
The EEOC alleged that U.S. Steel’s policy of randomly doing breath tests on probationary employees constituted a medical examination. The ADA limits employers’ ability to subject their employees to medical examinations or inquiries unless the challenged practice is covered by the business-necessity exception.
U.S. Steel defended the legality of its policy on random alcohol breath tests on four bases:
- The policy was job related and consistent with business necessity.
- The subregulatory guidance on which the EEOC relies deserves no judicial deference.
- The policy is part of a voluntary health and safety program negotiated with and agreed to by the employees’ bargaining representative and accepted by individual workers at the outset of their employment.
- The policy is necessitated by U.S. Steel’s obligations under federal safety and environmental laws and regulations.
In the court’s decision, Judge Nora Barry Fischer agreed with U.S. Steel’s argument that the random testing program is job related and consistent with business necessity because it allows the company to detect alcohol impairment on the job, which is a workplace hazard. “There is no question that maintaining workplace safety is a legitimate and vital business necessity,” wrote Fischer. “Probationary employees charged with performing dangerous and safety-sensitive duties have to work alongside regular employees. Employees must be alert at all times. No level of intoxication is acceptable on the job in these circumstances.”
Fischer noted that the legislative history on the ADA’s ban on medical exams acknowledged the wisdom of existing federal regulations requiring drug and alcohol testing of bus and truck drivers, airplane pilots, flight attendants, nuclear-power-plant operators, police officers and firefighters. These are workers in positions that, if performed badly, could result in harm to others in the general public, she wrote. “Yet, there is no reason to deem the lives of those in the general public less worthy of protecting than the lives of one’s co-workers. Where the guiding principle of the business-necessity exception is to permit employers to take pre-emptive steps to protect people from injury, the court sees no reason to make a distinction in the kinds of people that such employers are allowed to protect.”
EEOC Alleges Disability Discrimination
The case originated with Abigail DeSimone, who was dismissed by U.S. Steel in February 2008 after she failed a breath alcohol test shortly after she began working at the U.S. Steel coke plant in Clairton, Pa.
According to court documents, the company has been conducting random drug and alcohol tests of its probationary employees at the plant since 2006, in accordance with the terms of its labor agreements with the United Steelworkers union.
“The fact that there was a negotiated agreement between U.S. Steel and the union is not lost on the court, as it further highlights the consensus by all parties involved that such testing was consistent with maintaining workplace safety,” Fischer stated.
DeSimone said the test registered a false positive because she has diabetes.
In addition, DeSimone had told the nurse who administered the test that she had not ingested any alcohol but that she was diabetic and so she needed an alternative test. The nurse denied her request. Later that day, DeSimone obtained a blood alcohol test from her physician, which came back negative. This test result was faxed to the employer.
Even though U.S. Steel did not have an objective belief that DeSimone was under the influence of alcohol when tested at the plant, it discharged her for a violation of the corporate alcohol policy.
In September 2010 the EEOC sued U.S. Steel, alleging that the test violated the ADA.
DeSimone settled privately with U.S. Steel in March 2012, but the EEOC continued to pursue its claims against the company’s practices.
It’s not surprising that the EEOC went after U.S. Steel and the union, said Shea. The ADA has a specific exemption that allows testing and discipline or discharge for the current use of illegal drugs, but the exemption does not apply to alcohol—or even alcohol abuse, she added.
If you are an employer in a heavy or hazardous industry, keep an eye on this case, advised Shea. “Until the case is resolved on appeal, it’s probably wise to continue complying with the EEOC’s guidance. But this is a big preliminary win for employers in heavy industry,” she said.
Another reason employers should be cautious is the extremely dangerous nature of the work performed at the coke plant at issue in this case, Shea said. “Even a court that agreed with U.S. Steel might find that the employer interest in ensuring safety was not as compelling in a ‘lighter’ work environment, such as an office or restaurant, or even a lighter manufacturing environment.”
However, the court’s decision should provide a measure of relief to employers sparring with the EEOC over allegations that alcohol and drug testing violates the ADA. “Contrary to popular belief, the EEOC is not infallible,” Shea observed. “The agency’s interpretations must be reasonable based on the language of the governing statute. If they’re not, then a court and, ultimately, an employer can choose not to follow them.”
Roy Maurer is an online editor/manager for SHRM.
Follow him on Twitter @SHRMRoy.
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