HR Management & Compliance, Recruiting

Court Rejects EEOC Guidance on Employee Alcohol Testing

An employer’s random alcohol testing of probationary employees did not violate the Americans with Disabilities Act, despite federal agency guidance to the contrary, a federal district court has ruled (Equal Employment Opportunity Commission v. United States Steel Corp., No. 10–12 (W.D. Penn. Feb. 20, 2013)).

EEOC sued on behalf of a class of employees, arguing that the testing amounted to a medical examination that was not consistent with business necessity, which would violate ADA. The court disagreed, finding that U.S. Steel had successfully shown that the testing was necessary for safety reasons.

The commission then alleged that the employer was violating the law by testing employees without a reasonable belief that they were under the influence of alcohol, citing its own guidance requiring such suspicion before testing.

According to EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, “an employer must have objective evidence that an employee either cannot perform the essential functions of the job or poses a direct threat in order to subject the employee to a medical examination or inquiry.” Because a random alcohol breath testing policy cannot supply the requisite individualized, reasonable suspicion of intoxication, such testing must be per se unlawful, the commission argued.

The court, however, disagreed. Because nothing in the statute specifically requires employers to possess suspicion, reasonable or otherwise, the court cannot create such a requirement. Moreover, U.S. Steel’s employees wear protective gear that covers their faces and muffles their voices, making it almost impossible to detect alcohol use.

“EEOC has given no reason to believe that its assertion an employer must possess objective evidence of an employee’s inability to perform prior to invoking the ‘job-related and consistent with business necessity’ defense is tethered to the statutory language,” the court said. Such a standard “defies common sense in circumstances when employers cannot detect evidence of impairment through layers of protective gear,” the court continued.

The guidance’s “insistence on objective evidence of intoxication even when employers cannot obtain such evidence is unpersuasive,” the court concluded, granting summary judgment for the employer.

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