Take a Deep Breath: Employers May Conduct Random Alcohol Tests

Author: Beth P. Zoller, XpertHR Legal Editor

A district court in Pennsylvania held that an employer may require probationary employees in safety sensitive positions to undergo random alcohol testing without violating the Americans with Disabilities Act (ADA) if it can show that there is a clear business justification and medical necessity. In doing so, the court dismissed a claim filed by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who was terminated when she obtained a false positive test result due to her diabetes medication. See Equal Employment Opportunity Commission v. United Steel, +2013 U.S. Dist. Lexis 22748 (W.D. Pa. 2013).

The court held that the random tests were job-related and consistent with business necessity as required by the ADA. The court also rejected EEOC Enforcement Guidance requiring employers to engage in an individualized analysis before requiring employees to undergo a medical examination and providing an exception only for public safety employees. The court noted that unless an alcohol test was administered, supervisors would have a difficult time determining if an employee was drunk while engaging in hazardous work because of the heavy layers of protective gear worn by plant workers. Lastly, the court reasoned that testing only probationary employees was permissible because such employees are less likely to comply with the company's alcohol policy and because random testing of veteran employees would be broader and more intrusive than necessary.

Advice for Employers

In light of this case, employers may have more leeway than they initially thought when it comes to testing employees for alcohol use. Previously, employers may have been hesitant to test employees for alcohol unless:

They had a reasonable suspicion that the employee was impaired at work;
They had reasonable cause to believe that alcohol triggered a work-related accident; or
It was part of a last chance agreement.

However, this case reinforces an employer's right to conduct random alcohol testing that is job-related and consistent with business necessity. Here, the employer specifically demonstrated that the random testing was necessary to maintain employee safety and prevent alcohol-related accidents in a dangerous and toxic environment and drive home the importance of safety and sobriety. This employer's policy also passed legal scrutiny because it was narrowly applied to probationary employees. However, industrial employers should keep a close eye on this case and proceed cautiously as this decision may be appealed.