Under the Americans with Disabilities Act, an employer may not compel a current employee to undergo a medical exam or ask an employee whether he or she is disabled (or about the nature or severity of the employee's disability), unless the exam or inquiry is (1) job-related, and (2) consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). These standards - "job-related" and "consistent with business necessity" - are more stringent than the ADA standards for the testing of applicants.

Although the testing of employees for illegal drug use is permissible under the ADA, 42 U.S.C. § 12114(d), and the same statutory section misleadingly lumps together "illegal use of drugs and alcohol," id., we have long cautioned clients that they should only test employees for alcohol use when the "job-related" and "consistent with business necessity" standards are satisfied. One such situation would be when an employee's behavior suggests that he or she is alcohol-impaired on the job. Of course, random testing is the antithesis of this approach. Employers should know that the U.S. Equal Employment Opportunity Commission is now taking an aggressive approach on this very issue.

On September 30, 2010, the EEOC filed suit against U.S. Steel Corp. in the U.S. District Court for the Western District of Pennsylvania, Equal Employment Opportunity Commission v. U.S. Steel Corp., Civil Action No. 2:10-cv-01284 (W.D. Pa.), accusing the company of violating the ADA by requiring all its probationary employees nationwide to undergo random alcohol tests, and firing any employee with a positive alcohol test result. The EEOC asserts that random alcohol testing is a medical exam or inquiry, and that U.S. Steel requires such testing of employees even though the testing is not "job-related" and "consistent with business necessity."

This lawsuit arises from U.S. Steel's discharge of a probationary employee who tested positive for alcohol on a breathalyzer, although she denied having consumed any alcohol for more than one month. She informed the nurse administering the test that she was diabetic, and asserted that the condition might have caused or contributed to the positive breathalyzer test result. Her request to take a second test was denied. The company allegedly had no reasonable basis to believe she was, in fact, under the influence of alcohol or otherwise in violation of its alcohol policy. Later that same day, the employee's doctor administered a blood alcohol test and faxed the negative test results to the company. She was then fired based on her earlier positive breathalyzer test result.

Again, this case puts all employers on notice that the EEOC is pursuing cases against employee alcohol testing programs, when the testing lacks reasonable suspicion. It also provides a good lesson for employers that even though a practice is provided for in a collective bargaining agreement (the testing program was in a CBA between U.S. Steel and the Steelworkers Union), that provision does not immunize the employer from potential legal claims.