A federal judge in Pennsylvania held
this week that U.S. Steel had the right under the Americans with
Disabilities Act to conduct random alcohol tests on probationary
employees at a coke
plant, granting summary judgment to the company in a class action that had
been filed by the Equal Employment Opportunity Commission.
The court found, in a "case of first impression,"*
that the random tests were "job related and consistent with business
necessity," the ADA standard that applies when an employer requires a
current employee to undergo any type of medical examination.
*This is the first time that any court has
addressed this issue.
This is huge. Unless, of course, the decision is
reversed on appeal. The EEOC says it is considering its options. I will
be surprised if they don't appeal, especially since the court specifically
rejected the EEOC's Enforcement
Guidance on this topic.
U.S. Steel had problems with tippling/hung over employees
at its plant in Gary, Indiana, and with the full cooperation of its union,
adopted a mandatory random alcohol testing policy for probationary employees in
safety-sensitive positions. The stated rationale for limiting the testing to
probationary employees was that the newbies might not fully appreciate the
safety implications of coming to work drunk or hung over while the more
experienced employees would.
(I am skeptical of this explanation. I
suspect this was the only way the company could get the the union to agree to
A probationary employee at a Pennsylvania coke plant
tested positive. (She claimed that her diabetes caused her to have a false
positive result.) She filed a charge, and the EEOC jumped on it like a duck on
a june bug.
It is not surprising that the EEOC went after U.S. Steel
and the union. The ADA has a specific exemption that allows testing (and
discipline or discharge) for "current use of illegal drugs." I
am overgeneralizing, but random or universal drug tests are usually fine under
But the exemption does not apply to alcohol, or even
alcohol abuse. Yes, I know alcohol is a drug. Yes, I know alcohol abuse is
probably a bigger problem in the general population than abuse of illegal
drugs. Yes, I know a drunk employee is every bit as much a safety hazard as his
counterpart who is stoned on marijuana.
But there aren't a lot of pot smokers in Congress
(at least, none that I know of), while there are a lottttttttta
drinkers.* So there we are.
*Pure speculation on my part.
The rules that have applied to alcohol -- as
opposed to drug -- testing until now were understood as follows:
*You can test a current employee for alcohol
if you have "reasonable cause" or a "reasonable suspicion"
that the employee is impaired. This could include
post-accident testing if you have reason to believe that alcohol use might have
contributed to the accident. It could also include testing in connection with a
*You can take appropriate action against a
current employee for job-related problems that might be the result of alcohol
abuse, such as tardiness or absenteeism, violation of safety
rules, possession or consumption of alcohol on company premises, or coming to
work while impaired.
*But you cannot conduct "random"
tests for alcohol use on current employees unless another federal law requires
that you do so. (Exceptions apply to employees in public
safety positions, such as police officers and firefighters.)
So, now you see why this decision is potentially so
U.S. Steel raised some procedural issues, but on the ADA
issue, it made three arguments:
1) Random alcohol testing of probationary
employees in this type of work environment was, in fact, "job related and
consistent with business necessity."
2) The alcohol testing was part of a
"voluntary wellness program," which meant that U.S. Steel had the
right to do the testing even if it wasn't "job related and consistent with
3) Other federal laws required that U.S.
Steel do the testing; therefore, the testing did not violate the ADA.
The court (correctly, in my opinion) flatly rejected
arguments 2 and 3. This was obviously not part of a "wellness
program," the judge said, and it sure as heck wasn't
"voluntary." If you didn't cooperate in the testing, you were
fired. Even if you did cooperate, you were fired anyway if you tested
The judge also found that although other federal laws
(like OSHA) were implicated, none of them actually required random
testing of employees for alcohol. If another federal law requires you to do
something that would otherwise violate the ADA, you are allowed to comply with
the other federal law. But to qualify for this "other federal law"
exemption, the other federal law has to actually mandate what you did,
in conflict with the provisions of the ADA. If there is no real conflict
between the ADA and the other federal law, then you have to comply with both
However, the judge found in U.S. Steel's favor on Issue
#1. A coke plant is a dirty, heavy, dangerous place with molten coke,
temperatures reaching 2,100 degrees, and fire. (See photo above.) Coming
to work in this environment with any impairment was taking your life
into your hands, as well as the lives of co-workers. The court also noted that
employees are required to wear heavy protective gear over their faces that
makes it difficult, if not impossible, for a supervisor to smell an employee's
breath, the way you might be able to do in an office, a fast food restaurant, a
distribution center, or a microchip factory. U.S. Steel had previously had
alcohol-related problems at the Gary facility, so they weren't just dreaming up
this problem. And the union had cooperated in creating the program, which the
court said was further evidence that alcohol abuse was a genuine concern and
that the random alcohol tests were necessary.
As stated above, the court rejected the EEOC's Enforcement
Guidance, which requires an individualized analysis before you can send an
employee for a "medical examination" of any kind. The court also
found that the EEOC's exceptions, limited to public safety employees, were not
rational or justified by the language of the ADA.
So . . . if you are an employer in a heavy/hazardous
industry, keep an eye on this case. Until the case is resolved on appeal
(assuming that the EEOC appeals), it's probably wise to continue complying with
the EEOC's guidance. But this is a big preliminary win for employers in heavy
And hats off to U.S. Steel for being willing to be the
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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