Many employers may be surprised to learn that the ADA’s prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.
Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs’ enforcement guidance considers "blood, urine, and breath analyses to check for alcohol use" to be a medical examination under the ADA. Case law is sparse, but courts have generally followed the EEOC guidance.
So, if employers want to ensure their workers aren’t under the influence of alcohol, what should they do?
- The ADA allows employers to administer alcohol tests or other medical examinations where required by another federal law or regulation. An often-cited example is Department of Transportation (DOT) regulations that require safety-sensitive transportation employees undergo regular drug and alcohol testing.
- Even if their employees don’t fall within an exception like the DOT regs, employers may still implement and enforce policies that prohibit employees from working under the influence of alcohol. They may administer alcohol tests to enforce such a policy when "job related and consistent with business necessity."
- Medical examinations like alcohol tests are job related and consistent with business necessity when the employer has objective medical evidence or reasonable suspicion that the employee’s ability to perform his essential job functions is impaired, or the employee is a direct threat to himself or others.
- When conducting an investigation into an employee’s use of alcohol on the job, an employer may always ask the employee if he has been drinking. If an employee admits to drinking in violation of the employer’s policy, it may not be necessary to administer an alcohol test.
To stay within the strictures of the ADA when testing for alcohol use, employers are best-served by treating each situation case-by-case and avoiding blanket "one-size-fits-all" testing policies. Consideration should be given to the signs of the employee’s impairment, any observed impact on their essential job functions or performance, and what else may explain his behavior beyond alcohol use. Internal guidance and training on the signs of alcohol impairment may also be appropriate.