Ruling Supports Random Drug/Alcohol Testing by Employers

Thursday, March 14, 2013 | 0

In EEOC v. United States Steel Corp. (USDC W.D. Pa., Feb. 20, 2012), the facts involved a U.S. Steel facility in Pennsylvania which established a random drug and alcohol testing program for probationary employees at its coke production plant. The company’s goal was a “drug and alcohol free workplace.” A probationary employee was selected for a random breath alcohol test which indicated the presence of alcohol. The employee claimed the positive test result was attributable to her diabetic condition. Obviously, that excuse or reason wasn’t accepted and she was terminated and filed a charge with the Equal Employment and Opportunity Commission.
 
For reasons we consider controversial, the EEOC took up her cause and sued this major U.S. employer for the fact of the testing and not its results. In handling employment law defense claims for our clients, we assure them the worst thing that can happen in employee practices liability insurance litigation is the determination by our federal government to unleash their effectively unlimited legal resources on private employers. The “sequester” budget cuts haven’t slowed the EEOC down a bit.
 
The EEOC initially claimed the random drug/alcohol test program was similar to a medical examination in a post-hire setting. The EEOC asserted the Americans with Disabilities Act does not permit employers to conduct medical examinations of employees once the employee has commenced employment, unless the employer can establish the medical examination was “job-related and consistent with business necessity.”
 
We have no true idea why any employer would spend the money to get an exam of one of their workers for any other reason; similarly, it is hard to imagine employees consenting to medical examinations when their employers had no identifiably business reason for it. In a similar vein, we are confident every adult in this country would understand a drug/alcohol test was almost by definition job/business-related.
 
The EEOC claimed the company had not met its burden to permit such testing. The Federal District Court disagreed and found U.S. Steel proved the coke plant was an extremely dangerous workplace given the nature of the equipment, molten coke and the various employee job duties in the vicinity of the operation.
 
With respect to the Court, we feel this raises the odd, rhetorical question of why anyone would care if it is an ordinary, mildly dangerous or “extremely dangerous” place to work? Should the law or legal standard relating to workplace safety and drug/alcohol testing be different? If you allow a lot of drunks and drug addicts in your workplace, wouldn’t that make it “extremely dangerous” by definition?
 
Either way, the Federal District Court also recognized drug and alcohol testing was related to legitimate safety concerns, including the employer’s obligation under OSHA’s nebulous but potentially business-busting General Duty Clause, to protect employees against hazards to their safety and health. We strongly agree with the Court’s position on those issues.
 
The Court held “there is no question that maintaining workplace safety is a legitimate and vital business necessity.” After extensive analysis, the Court granted U.S. Steel’s motion for summary judgment dismissing the lawsuit.
 
We consider the EEOC’s decision to litigate this entire issue to be misguided—why would a commission of the U.S. government fight to keep U.S. workplaces arguably more dangerous? When is it a solid administrative idea to block random drug/alcohol testing in the workplace? What if this woman had been allowed to continue working, got drunk, made a mistake and killed an innocent coworker?

Eugene Keefe is a founding partner of the Keefe, Campbell, Biery & Associates workers' compensation defense law firm in Chicago. This column was reprinted with his permission from the firm's client newsletter.