A federal judge in Pittsburgh dismissed the Equal Employment Opportunity Commission’s challenge to U.S. Steel Corp.’s policy of randomly testing new employees for drugs and alcohol. In EEOC v. U.S. Steel Corp., the Judge rejected the EEOC’s position that random testing of new employees — which the Company implemented after agreement with the employees’ union — constituted an illegal medical exam under the Americans with Disabilities Act. Attached here is copy of the Court’s opinion.

The challenged Company policy applied to newly-hired steelworkers who work closely with “molten coke” that can reach a temperature of more than 2,000 degrees. Their work involves dangerous heights, massive moving machinery, and superheated gases that are both toxic and combustible. Given the potential disastrous consequences from impaired employees working under these conditions, the Company and the Union negotiated a random alcohol and drug testing program for probationary employees.

The Company discharged a probationary employee for violating the drug and alcohol policy. When the test showed a positive result for alcohol, the employee denied having used alcohol for weeks and claimed that her medical condition might have caused or contributed to the positive test result. After the Company nurse refused the employee’s request for an alternative test, the employee obtained a blood alcohol test from her physician, which, by then, registered negative for alcohol. The Company discharged the employee despite knowledge of the results from the second test.

Subsequently, the EEOC sued U.S. Steel for improperly firing the employee because she was diabetic. U.S. District Judge Nora Barry Fischer disagreed and ruled the tests practical, fair, and legal. Judge Fischer emphasized that the protective gear worn at the Company’s facility made it virtually impossible to detect impairment at work. The Judge added that newer workers, not realizing the danger, are more likely to report to work “under the influence.”

Most surprising about this case is that it appears to be a close call. Most employers view collectively bargained, professionally administered random drug and alcohol testing “above” governmental scrutiny. Judge Fischer’s focus on the type of employees subjected to the testing and their specific working conditions suggest that not all random testing is equal.

Employers should review their random drug and alcohol policies to make sure they would withstand this Court’s analysis and an EEOC challenge.