Upholding the validity of an employer’s random alcohol testing policy for newer, safety-sensitive employees under the Americans with Disabilities Act, a federal district court in Pennsylvania has ruled that the employer’s test protocol did not violate the ADA’s general prohibition against unwarranted medical examinations. EEOC v. U.S. Steel Corp., No. 10-1284 (W.D. Pa. Feb. 20, 2012). Rejecting the U.S. Equal Employment Opportunity Commission’s challenge to the random alcohol testing, the court further ruled the EEOC’s Enforcement Guidance: Disability Related Inquiries and Medical Examination of Employees under the American with Disabilities Act, requiring objective evidence of intoxication before testing, was not entitled to deference. However, the court declined to find the policy was part of a voluntary employee wellness program or was required by other laws. 

Background

U.S. Steel Corporation maintains a coke manufacturing facility in Clairton, Pennsylvania. The coke production department produces coke by heating coal inside coke oven batteries. New, entry-level hires generally are assigned to this department and must qualify to perform three functions: Door Cleaner, Lidman, and Coke Oven Laborer. Employees in these positions work on or very near the coke batteries, which can reach 2,100 degrees Fahrenheit. Other hazards in the department include narrow work areas, dangerous heights, massive moving machinery, superheated gasses that are toxic and combustible, biosludge, and mobile vehicles containing hot coke or bituminous coal. Because of the hazardous working conditions, employees wear layers of protective clothing covering the entire body, including face masks and other personal protection equipment. 

In accordance with the terms of a labor agreement negotiated between the company and a union representing certain groups of U.S. Steel employees, probationary employees are subject to random drug and alcohol testing. Probationary employees who receive a positive test result are discharged. On January 14, 2008, the company hired Abigail DeSimone to work at its Clairton facility. On January 29, 2008, she submitted to a random breath alcohol test and tested positive. She was terminated. 

DeSimone filed a disability discrimination charge with the EEOC. The EEOC later sued U.S. Steel, alleging the random alcohol policy violated the ADA’s prohibition against medical examinations that are not “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The company moved for summary judgment, arguing the policy met the ADA’s requirement for medical examinations (job-related and consistent with business necessity), the EEOC’s Enforcement Guidance on the issue was not entitled to deference, and the policy was part of a lawful, voluntary employee wellness program or otherwise required by law, among other things.

Policy Did Not Violate ADA

The company argued the random alcohol testing policy was job-related and consistent with business necessity because it helped detect impaired employees and thus helped to eliminate injuries from hazards in the workplace. The EEOC contended the ADA prohibited such testing unless the employer had an individualized, reasonable suspicion of a safety concern. The court rejected the EEOC’s argument. It observed that “to survive a hazardous work environment that includes molten hot coke, toxic waste products, and massive moving machinery, employees must be alert at all times. No level of intoxication is acceptable on the job.” The court noted the company had a valid concern regarding intoxication in the workplace. It had such a problem at another plant, which led to the implementation of the random alcohol and drug testing policy. The court also observed that many employers, including numerous federal agencies, use random drug and alcohol testing for employees working in safety-sensitive positions because of the policies’ “unique deterrent effect.” By deterring alcohol and drug use in the first instance, the court said, the policy served the asserted business necessity of workplace safety.

The court also had “no issue” with limiting the scope of the random testing program to probationary employees because they are comparatively less skilled at their jobs, are relatively unfamiliar with company rules, and may not have internalized the importance of workplace safety. Furthermore, considering the extensive protective gear worn by employees, it was difficult for supervisors to ascertain whether a particular employee was exhibiting any sign of intoxication; thus, for-cause testing, the court concluded, was “completely inadequate.” The EEOC’s vision of the ADA “def[ied] common sense,” the court said, because it could result in an unsafe work environment and did not further the ADA’s purpose of eliminating employment practices that unfairly punish people with disabilities or stigmatize them, reasoned the court. Accordingly, the court granted summary judgment to the company, holding the random alcohol testing did not violate the ADA’s medical examination provision.

Enforcement Guidance Not Entitled to Deference

The EEOC argued that its Enforcement Guidance: Disability Related Inquiries and Medical Examination of Employees under the American with Disabilities Act, No. 915.002 (July 27, 2000), supported its position that objective evidence was required before administering an alcohol test. The court disagreed, finding the Enforcement Guidance did not carry the force of law and was not entitled to deference under Supreme Court precedent (Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). Furthermore, the court noted, the Enforcement Guidance was not tied to the ADA’s statutory language or legislative history. 

No Wellness Program Exception

The court next examined the company’s argument that the alcohol testing policy was part of a voluntary wellness program. The court rejected this contention, observing, “[r]ather than providing tips on healthy living, an employee who cannot supply an adequate explanation for a positive test result is subject to termination.” The program also was not voluntary because employees who refused a test were terminated.

Testing Not Required by Other Federal Laws

The company argued the testing policy was required under federal law, such as the Occupational Safety and Health Act and federal environmental laws. The court rejected this contention, noting, “Employers are not met with inconsistent federal obligations simply because they choose to place themselves in a position in which they cannot comply with all applicable regulatory laws.” If employers were able to circumvent the ADA prohibition on medical testing by placing selected employees in compliance-critical positions, the court reasoned, the exception would effectively swallow the rule. 

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While the court recognized the practical realities of the workplace and how untenable the EEOC’s objective evidence standard was in some work environments, its focus on the probationary employees may be troubling to employers in manufacturing, construction and other higher-risk industries. Many of these employers may see no distinction based on probationary status in the risk of substance abuse among employees in safety-sensitive positions. Whether the EEOC will appeal remains to be seen.