By Edwin S. Hopson
The U.S. Equal Employment Opportunity Commission (EEOC) announced recently that it had filed suit in the U.S. District Court for the Western District of Pennsylvania, Case No. 2:10-cv-01284, against U.S. Steel Corporation claiming it had violated federal law when it applied a nationwide policy of requiring probationary employees to undergo random alcohol tests. The case was initiated after the company fired an employee at its Clairton, Pennsylvania facility as a result of such a test, according to EEOC’s press release.
Since at least 2006, according to the EEOC, the company has had a provision in its labor agreement with the United Steelworkers of America, covering its Clairton facility and other facilities nationwide, which provides for random alcohol testing of probationary employees and which does not require that the company have a reasonable basis for subjecting the employee to random testing.
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination based on an employee’s disability or perceived disability, but also “provides that once a person has been hired and started work, an employer generally can only require a medical exam such as an alcohol test if the employer has reason to believe the employee would not be able to perform a job successfully or safely because of a medical condition or if the employer needs medical documentation to support an employee’s request for an accommodation,” according to the EEOC. See also EEOC Guidance at http://eeoc.gov/policy/docs/guidance-inquiries.html#N_31_
EEOC claims that the company required probationary employee Abigail DeSimone, who was employed at the company’s Clairton, Pennsylvania facility, to undergo two random breath alcohol tests (some nine minutes apart) although the company had no reasonable basis to believe that she had violated its alcohol policy. Both tests showed a positive result for alcohol, and DeSimone claimed she advised the nurse who administered the test that she had not consumed any alcohol in the past month but that her medical condition might have caused the positive test result.
DeSimone requested an alternative test be administered that same day, but the company nurse refused her request. DeSimone, according to the EEOC, then obtained a blood alcohol test from her own doctor that was negative for alcohol. Those test results were requested by and provided to the company. Nevertheless, the company discharged DeSimone based on the positive tests administered by its own nurse.
EEOC is seeking monetary damages on behalf of DeSimone and other affected probationary employees nationwide, an immediate cessation of the company’s use of such a provision in its labor agreement and/or practice of administering random alcohol testing of probationary employees, as well as other injunctive relief, including preventing the union from agreeing to random testing in future labor agreements and notifying employees that the random testing policy “is unlawful and void.” The union was also named as a defendant in the case.
The case presents a somewhat conflicting interplay between an employer’s need and right to prohibit alcohol usage to the extent it impacts the workplace, and the ADA’s restrictions on workplace medical examinations.