That s because the ADA views alcoholism as a disability, protected under the law. Responsible employers need to proceed with caution whenever considering testing workers or applicants for alcohol.
Proceed with caution
First things first. While most companies would prefer to be aware of alcohol-related problems before making offers of employment, under the ADA, job offers must be in hand before any testing can occur.
Unlike investigations for the presence of illegal drugs, alcohol tests are considered "medical examinations" under the ADA, and employers cannot subject job applicants to medical exams prior to officially offering employment.
Once a conditional employment offer is extended, an applicant may be required to undergo any type of pre-employment physical examination--including alcohol testing. What can employers do if the test results are positive? If an applicant had been tested for illegal drug use, the course would be clear.
A company may legally deny employment to an applicant based on a positive drug test. The same, however, is not necessarily true with regard to a positive alcohol test.
Unlike an active user of illegal drugs, an alcoholic is considered an individual with a disability under the ADA.
If a company denies employment to anyone who tests positive for alcohol, they may be subject to a claim of discrimination against individuals with a disability, namely, alcoholism.
Drunk or a drunk?
Is the applicant an alcoholic or just a heavy drinker? The EEOC takes the position that employers cannot refuse to hire alcoholics simply based on a positive test result indicating alcohol use. Ironically though, a company legally could deny employment to non-alcoholics under the same circumstances.
Savvy employers should not make determinations based merely on the presence of alcohol in an individual's system, but should focus instead on the applicant's behavior or indicia of actual impairment during the post-offer, pre-employment medical examination. An employer certainly can deny employment to any applicant who reports to the pre-employment exam impaired by the use of alcohol.
The employer might define what level of alcohol in the blood constitutes impairment, e.g., an alcohol concentration of .02 or .04. By doing this, an employer would more clearly be denying an applicant employment for reporting to the medical exam under the influence of alcohol rather than because of his or her status as an alcoholic.
After hiring, testing must be deemed a business necessity
What can companies do if they suspect alcohol is a problem after hiring? Employers should keep in mind that the ADA prohibits the administration of employee medical examinations unless it can be shown that such testing is job-related and consistent with business necessity.
This prohibition renders random alcohol testing unlawful in many instances. For employees subject to specific federal policies, such as the Department of Transportation Regulations, random alcohol testing can be required. In other cases, non-random types of alcohol testing, such as post-accident and reasonable suspicion testing, are generally considered consistent with business necessity, and legal under the ADA.
A good rule of thumb for employers is to keep in mind that all medical examinations, including alcohol testing, have potential ADA ramifications. Careful consideration should be given to the implementation of any alcohol testing program.