As recently reported in Employment Law 360 (subscription required), the EEOC sued US Steel alleging that certain of its alcohol testing practices violate the Americans with Disabilities Act. Specifically, in EEOC v US Steel Complaint EEOC alleges that US Steel has a policy and practice of randomly testing for alcohol probationary employees at its Clairton, Pennsylvania facility. The test - - an alcohol breath test - - is administered randomly to employees who are within their 90 day probationary period, without regard to whether there exists an objective basis to believe that the employee is under the influence. Interestingly, the practice is spelled out in the collective bargaining agreement with the United Steelworkers of America, Local 1557, which represents the employees, and was also named a defendant to the suit.
The EEOC asserts that the test is a "medical test," within the meaning of the ADA and therefore cannot be administered randomly during employment, but only if there is reason to believe, based on objective evidence, that the employee is under the influence at the workplace.
The case is interesting in a number of respects. First, it serves as a reminder that tests for alcohol and illegal drug use are fundamentally different under the ADA. Alcohol tests, whether by blood, breath, or urine sample are "medical examinations" and, therefore, may not be administered during employment unless the employer has a reasonable belief based on objective evidence that the employee's job performance is impaired by alcohol. On the other hand, tests for the illegal use of drugs are not considered medical examinations and, therefore, may be done randomly, with or without evidence of impairment. See the EEOC's Enforcement Guidance for a helpful discussion of medical examinations.
Secondly, the case is interesting because the test in question was done pursuant to a negotiated term of US Steel's collective bargaining agreement with the union. Here, EEOC is understandably taking the position that the union - - like individual employees themselves - - cannot negotiate away ADA protected rights; in short, that a collective bargaining agreement does not trump the ADA. Indeed, the EEOC is seeking an order against both US Steel and the union prohibiting each of them from collectively bargaining labor provisions like that challenged in the complaint. However, EEOC is also seeking punitive damages solely against US Steel for what it describes as US Steel's malicious and reckless conduct. It seems a stretch to say that US Steel's conduct is malicious and reckless when the practice complained of was agreed to by the union charged with protecting employees' rights. This case bears watching.