Do Random Alcohol Testing? The End Might Be Near

Though random alcohol testing is something not usually found in non-profits, I thought the information might be useful nonetheless.  Particularly with so many organizations beginning to mimic the HR infrastructures of corporations.

Not to long ago, the Equal Employment Opportunity Commission (EEOC)  filed a lawsuit against U.S. Steel Corp. for firing an employee based on a positive alcohol test.

The Commission has since made clear that employers may not discriminate against workers due to status. One’s status includes disability, race, color, religion, sex, national origin and age. The EEOC regulates discrimination against these statuses as well as those found under the American with Disabilities Act of 1990. One form of  discrimination can be the use of medical exams, usually a covert way of  discriminating without being obvious. Consequently, the ADA, has provisions that limit these medical examinations

All of this is important because according to the EEOC, random alcohol testing  qualifies as a medical exam (drug testing is specifically limited). In fact, most tests that are invasive and require blood, urine or breath to be drawn will be classified as a medical exam. The problem with this is that medical exams are generally allowed only when the out-come is job-related. In other words, under federal law 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.” Aside from this, in order to test employers must have a a reasonable belief, based on objective evidence, that an  employee will be unable to perform a job or will otherwise pose a threat.

There are a few exceptions however. One exception is when there are safety risks associated with the job the employee holds. Employers may also prohibit employees from drinking while on the job, and conduct alcohol testing,  if they have a reasonable belief that an employee has been drinking during work hours. Lastly, federal laws and regulations requiring otherwise, such as the Department of Transportation requiring certain drivers to be tested, may serve as defense as well.

Again, random alcohol testing may not be applicable to your organization per se. But in lieu of the recent lawsuit, this may be cause for your organization to re-evaluate any periodic testing that is currently in place to check for compliance. For questions and answers concerning alcohol testing, find the EEOC’s website here.  For guidance on how to best implement periodic testing look here. The press release on the case can be found here.