Can an Employer Require Random Alcohol Tests?

A U.S. District Court in Pennsylvania recently addressed the issue of whether an employer may utilize a random alcohol testing policy for its employees. Initially, it is important to note that drug and alcohol testing testing standards differ between government and private sector employers.  Government employers, who are subject to Constitutional search and seizure restrictions, must survive a higher level of scrutiny in implementing any drug or alcohol testing program.  Traditionally, private sector employers have been free to implement more intrusive plans, subject only to the limitation that certain tests may be considered improper medical examinations under the Americans with Disabilities Act (ADA). (Drug tests, as opposed to alcohol tests, are specifically exempted from the definition of a medical examination.)

In EEOC v. United Steel (W.D. Penn. 2013) , the Equal Employment Opportunity Commission sought to enforce its guidance standard for random alcohol testing, which advises that a company must use an individualized assessment of suspicion or business necessity prior to medical testing.  Contrary to EEOC guidance, United Steel employs a general policy of testing all probationary employees for alcohol use on a random basis, arguing that steelworker positions contain inherent safety risks that support the need for such testing.

In this case, the Court agreed that United Steel’s random testing procedure was a reasonable safety precaution and deterrent for alcohol use while on the job.  As defined by the Court, a business necessity “must be ‘vital to a business,’ such as ‘ensuring that the workplace is safe and secure or cutting down on egregious absenteeism.’”  While the Court dismissed the EEOC’s argument that individualized suspicion or risk assessment is a necessary element of any such examination, it still recognizes “the proposition that an employer must generally possess some minimal job-related justification before insisting on a medical examination.”  Employers should keep in mind that United Steel was able to assert a bevy of hazardous workplace conditions to justify its random testing policy.  However, not all employment positions will survive similar scrutiny.