Western Districts Upholds Random Drug And Alcohol Testing Policy Under The ADA
Written By: Felicity S. Hanks
In the recent decision of the Equal Employment Opportunity Commission v. U.S. Steel Corporation, et al., the U.S. District Court for the Western District of Pennsylvania dismissed the EEOC’s challenge to U.S. Steel’s random drug and alcohol testing policy, as it applied to probationary workers at safety-sensitive facilities.
U.S. Steel conducts random drug and alcohol testing on its probationary employees at the Clairton Coke Plant in accordance with the terms and conditions of its union labor agreement. Probationary employees who produce a positive test result are discharged.
U.S. Steel argued that its policy enables the company to detect drug and/or alcohol impairment on the job, thereby serving the business necessity of eliminating hazards on the job. Industrial facilities, like the Clairton plant, are highly safety-sensitive as workers encounter regular hazards, such as 2,100 degree coke batteries, toxic and combustible gasses, dangerous heights, and moving machinery. No level of intoxication would be acceptable under those working conditions. Newly hired employees may not immediately appreciate the risks of such tasks, and until they can, it is critical that U.S. Steel be permitted to insure its employees’ compliance with the drug and alcohol policy.
U.S. Steel further argued that due to the nature of the shift work, and the full body protective equipment worn by workers, it is difficult for supervisors to detect signs of intoxication. Accordingly, U.S. Steel is unable to obtain objective evidence of a worker’s intoxication, and must rely upon the random testing policy to insure compliance with the company’s drug and alcohol policy.
The EEOC challenged the policy under the Americans with Disabilities Act (“ADA”), alleging that the testing violates 42 U.S.C. § 12112(d)(4)(A), which prohibits medical examinations that are not “job-related and consistent with business necessity.” EEOC’s position is that medical testing is only permitted if the employer has an individualized, reasonable suspicion that the employee may be under the influence. Therefore, as a matter of policy, the EEOC takes the hardline position that all random drug and alcohol testing is per se invalid, because it lacks reasonable suspicion.
The Court concluded that given the nature and safety-sensitivity of the work performed at facilities like the Clairton Coke Plant, random drug and/or alcohol testing was permissible because safety is a business necessity and the testing policy is necessary for maintaining employee safety and preventing drug and alcohol-related accidents.
The Court found that the limitation of the policy to only a subset of employees, namely the probationary employees, was consistent with precedent to permit random testing on a group of similarly situated employees who pose an elevated risk to workplace safety. As newly hired U.S. Steel employees possess fewer skills and familiarity with company rules, the Court found that they are more likely to engage in risky behavior until they have been on the job long enough to appreciate the risks of their uniquely dangerous workplace. Since probationary employees are not similarly situated with regular, seasoned employees, the application of the policy to the subset is justified. Furthermore, as only a necessary subset of employees is subject to the policy, the Court found that the policy is no broader or intrusive then necessary.
The Court also distinguished the facts of this case from a situation where employees are in an office setting, noting that requiring employers to have objective evidence of intoxication prior to testing may make sense in an office, where employees are readily visible by supervisors. However, in the Clairton plant, workers are covered from head to toe in protective gear, thus making such observations impossible.
Therefore, the Court concluded that the policy of randomly testing probationary employees at the Clairton Coke Plant and similar facilities is job-related and consistent with business necessity within the meaning of §12112(d)(4)(A). 
It is notable that in dismissing the EEOC’s challenge, the Court discredited as unpersuasive the EEOC’s reliance on its own Enforcement Guidelines as legal support . The Court found that the EEOC guideline interpretation that reasonable objective evidence is needed in order to conduct testing was not tied to the statutory language of the ADA.
What this Case Means for Employers
This case demonstrates that the courts may adopt a more practical approach to these issues than the EEOC, which has taken a strict position against all random drug and alcohol testing. Although this case can be seen as a win for employers, it does not provide employers with unchecked authority to randomly test their employees. The holding of the Court was narrowly tailored to the facts of this case: a safety-sensitive facility, a subset of employees who needed additional oversight and a situation where the nature of the job made it difficult to detect signs of intoxication.
If you an employer that wants to implement a random drug testing policy, please contact any member of our Labor & Employment Practice Group for guidance.
 U.S. Steel also asserted that the policy, which is provided for in the labor agreement, is permissible under the ADA exception permitting voluntary medical examination in furtherance of an employee health program. 42 U.S.C. §12112(d)(4)(B). The Court rejected the argument, finding that the policy was a measure to screen out intoxicated employees, not part of a voluntary health and wellness initiative.