Reasonable Suspicion Alcohol Test of Employee Was Justified After Bar Fight and Diagnosis of Alcoholic Pancreatitis
Reasonable suspicion alcohol testing of a safety-sensitive employee who was injured in a bar fight and who took medical leave for “acute alcoholic pancreatitis” was upheld by a federal court in Indiana, even though the testing did not take place until the employee returned to work after his medical leave ended. Foos v. Taghleef Industries, Inc., 2:13-CV-00438 (S.D. Ind. Sept. 22, 2015).
Plaintiff worked as an Extruder Operator, which required him to operate a machine that melts plastic pellets into a flat sheet which is then stretched in an oven. This job was considered dangerous, and required Plaintiff to wear safety glasses, steel-toed shoes, gloves and earplugs while working.
From 2009 to 2012, Plaintiff took several medical leaves of absence to receive treatment for pancreatitis. In April 2013, he requested time off to recover from a facial fracture and deviated septum that occurred during a bar fight. A week after he returned to work, he requested additional time off due to problems with his “stomach or pancreas.” The medical certification returned by his physician indicated that his primary diagnosis was “acute alcoholic pancreatitis.” This was the first time that the employer learned that Plaintiff’s pancreatitis was connected to alcohol consumption. Based on this diagnosis and the fact that Plaintiff recently had been injured in a bar fight, the employer determined to subject Plaintiff to “reasonable suspicion” drug and alcohol tests upon his return to work.
Plaintiff returned to work on June 15, 2013 at 5:30 a.m. Shortly after the pre-shift meeting, he was advised that he was being taken to the hospital for drug and alcohol testing. The first breath alcohol test, administered at 7:36 a.m., showed a blood alcohol level of .081. The second breath alcohol test, administered at 7:53 a.m., showed a blood alcohol level of .078. Plaintiff’s employment was terminated on June 17, 2013.
Plaintiff commenced a lawsuit alleging disability discrimination in violation of the Americans with Disabilities Act and Family and Medical Leave Act retaliation. Among other things, Plaintiff argued that the disclosure of his confidential medical diagnosis for the purpose of drug and alcohol testing and termination was a violation of the ADA. The Court disagreed, finding that the employer was concerned for the safety of Plaintiff and his co-workers, especially in light of the dangerousness of Plaintiff’s job. The Court also rejected Plaintiff’s argument that the alcohol test was an impermissible medical examination under the ADA, because the purpose of the test was not to determine whether he was disabled, but rather, to determine whether he arrived at work impaired by alcohol.
Additionally, the Court rejected Plaintiff’s claim that he was “regarded as” disabled. The fact that the employer was aware of his diagnosis was not enough to establish that the employer regarded Plaintiff to be disabled. Moreover, the employer’s concerns were not with Plaintiff’s medical condition, but with the possibility that he might report for work while under the influence of alcohol.
Plaintiff also challenged the basis of the “reasonable suspicion” for the alcohol test. He argued that no one personally observed him acting in a way that would indicate he was impaired, but rather assumed that he might be impaired. The Court rejected this argument, too, because the employer’s Employee Handbook contained a catch-all provision that permitted it to “evaluate situations on a case-by-case basis where deviations are in the best interest of [Taghleef] and its employees.” Given the evidence that Taghleef was concerned with safety, and because the reason for the test was to ensure that Plaintiff was not working while impaired, the Court held that the alcohol test was not discriminatory.
Plaintiff’s FMLA retaliation claim was dismissed for similar reasons, specifically: there was no causal connection between his FMLA leave and the alcohol test, and, Taghleef introduced evidence that other employees who had not taken FMLA leave were disciplined for drug and alcohol violations.