Random Alcohol Testing May Violate the ADA

By
April 21, 2011

Many employers have implemented policies to randomly test employees for drugs and alcohol use. The purpose of such policies is, of course, safety.
Recently, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against U.S. Steel Corporation alleging that the Company’s random alcohol testing policy violated the Americans with Disabilities Act (ADA). In the lawsuit, the EEOC maintains that alcohol testing is a medical examination under the ADA and, therefore, alcohol testing must be “job related” and “consistent with business necessity” as required under the ADA. If the EEOC’s position is correct, this would mean that an alcohol test would only be permissible when an employer has a reasonable belief that an employee is unable to perform his or her job duties or poses a direct threat to himself or others due to a medical condition.
According to the EEOC, U.S. Steel violated the ADA when it required a probationary employee, Abigail DeSimone, to undergo a breathalyzer test to detect alcohol. Her test was positive for alcohol. However, DeSimone advised the Company nurse who gave her the test that she had not ingested any alcohol in the past month and that her medical condition (i.e., diabetes) may have resulted in a positive test result. DeSimone asked for a blood alcohol test but the nurse refused. DeSimone then had her doctor perform the blood alcohol test. This occurred on the same day as the Company’s test but several hours later. The blood alcohol test was negative for alcohol. DeSimone provided that test result to U.S. Steel but the Company refuse to accept it and terminated her for violating the Company’s drug and alcohol policy.
In its Complaint, the EEOC is seeking an order that U.S. Steel make DeSimone “whole” as a result of the Company’s violation of the ADA, including back pay with interest and compensation for any other losses that DeSimone suffered as a result of the violation. The EEOC is also seeking damages for pain and suffering, inconvenience, mental anguish, and punitive damages based upon its belief that U.S. Steel’s actions were malicious and reckless. The EEOC is not only seeking these damages for DeSimone, but also for all other unidentified employees at any plant location throughout the United States who were subjected to random alcohol testing and who suffered injury as a result.
In light of the EEOC’s recent action, employers who have policies in place that authorize random alcohol testing should exercise caution. Such employers may wish to refrain from random alcohol testing until the U.S. Steel case plays out and test employees only when there is a reasonable suspicion that an employee may be using alcohol or is under the influence of alcohol at work. Proceeding with random alcohol testing at this time could result in a claim being filed alleging a violation of the ADA by either an employee or the EEOC. Substantial damages could be awarded in such an action if a violation is found and, at a minimum, an employer would incur the expense of litigation.
Please feel free to contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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