FOCUS ON ALCOHOL TESTING BY BILL CURRENT, THE CURRENT CONSULTING GROUP The ADA and Alcohol Testing S


ome of the most common questions that Te Current Consulting Group, LLC, gets are pertaining to the


Americans with Disabilities Act (ADA) and how they impact workplace alcohol testing. Tere continues to be so much interest (and misinformation) on this topic that we continue to try to work with employers to create the best policy possible, and wanted to share more information on the topic by running this article here. As a preface, it is important to understand that workplace alcohol testing is legal in all 50 states and that despite some restrictions caused by ADA interpretations by the Equal Employment Opportunity Commission (EEOC), random alcohol testing is still required by some agencies of the U.S. Department of Transportation (DOT) as part of DOT’s drug and alcohol testing regulations. Did you know that “current” alcohol


abusers are protected under the Americans with Disabilities Act (ADA), and disability- related inquiries and medical examinations are subject to the ADA’s restrictions? On the list of “pre-employment” medical examinations that are restricted by the ADA are “blood, urine, and breath analyses to check for alcohol use.” As such, pre- employment alcohol testing is prohibited in non-mandated testing situations. What about alcohol testing of existing


employees? According to the Equal Employment Opportunity Commission (EEOC) employees may be required to submit to an alcohol test when the inquiry is “job- related and consistent with business necessity.” Te EEOC considers random alcohol testing a violation of the ADA. Okay, so far we know that pre-


employment and random alcohol testing are prohibited by the ADA according to the EEOC. Are there exceptions? Yes. Employers who fall under the mandates of the U.S. Department of Transportation


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(DOT) drug and alcohol testing regulations may be required to conduct alcohol testing, including random alcohol testing. Even the EEOC justifies employee


alcohol testing in some circumstances. Quoting from the EEOC’s website: “Generally, a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” (Te EEOC adds: “Disability-related


inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity.”) Te ADA permits reasonable suspicion


alcohol testing when the employer has reason to believe that an employee is: a) under the influence of alcohol, and b) incapable of performing the essential functions of his or her job. Post-accident alcohol testing is also permited when there is clear suspicion that the individual or individuals involved in the accident were under the influence of alcohol at the time of the accident. In both situations, reasonable suspicion


and post-accident, supervisors should be trained in how to spot the signs and symptoms of alcohol misuse, how to determine when a test is justified under the company’s policy, and document all considerations and procedures followed. It may also be advisable to have more than one supervisor make those determinations even if it is not required by the applicable state law. Quoting from the EEOC website regarding periodic alcohol testing:


“May an employer subject an employee,


who has been off from work in an alcohol rehabilitation program, to periodic alcohol testing when s/he returns to work? Yes, but only if the employer has a


reasonable belief, based on objective evidence, that the employee will pose a direct threat in the absence of periodic testing. Such a reasonable belief requires an individualized assessment of the employee and his/her position and cannot be based on general assumptions. Employers also may conduct periodic alcohol testing pursuant to ‘last chance’ agreements.”1 A 2013 legal decision has opened up


the way for employers to actually conduct random alcohol testing in at least one circumstance. U.S. Steel was experiencing problems with employees exhibiting the signs of alcohol abuse at a plant in Gary, Indiana. Te company worked with its union to establish a policy that included random alcohol testing for probationary employees in safety-sensitive positions. Te company reasoned that new workers in such positions might not fully appreciate the dangers posed by being at work under the influence of alcohol. Te company’s policy was challenged in court


summer 2017


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