Your Toasting to 2011 Isn’t the Boss’s Business: Ann Woolner

So you’re out tonight toasting farewell to 2010, and then you toast hello to 2011. You drink to health and prosperity. You raise a glass to friendship and love. You become giddy as you ponder a new year, or maybe it’s all those champagne toasts, the cocktails before dinner, the wine at dinner, brandy later.

Maybe you don’t remember exactly what you were toasting.

Take comfort in this thought: Unless you return to work obviously hung over, inebriated or sipping some hair of the dog from your coffee thermos, your employer can’t legally test you for alcohol.

Drugs, yes. But if the boss has no good reason to suspect an on-the-job alcohol problem and still asks for your blood, urine or breath in search of one, call the U.S. Equal Employment Opportunity Commission.

It turns out that random workplace alcohol testing is a form of illegal discrimination under federal law, according to the agency. Specifically, it seems to violate the Americans With Disabilities Act, which bars medical testing except when “job- related and consistent with business necessity.” And checking blood alcohol content is considered medical testing, according to federal guidelines.

Right now, the EEOC is suing U.S. Steel Corp. and the United Steelworkers union because their collective bargaining agreement says the company can look for blood alcohol content in symptomless employees during their probationary period.

Case Study

Abigail DeSimone was one such employee. She was working at U.S. Steel’s coke-making plant south of Pittsburgh in 2008 when a company nurse told her to breathe into a device that then detected alcohol. Twice.

False positives, DeSimone insisted. She said she hadn’t had a drink for weeks and blamed her diabetes for misleading the breathalyzer. Her doctor gave her a blood test later that day and faxed in the result: negative for alcohol.

Nonetheless, out the door she went.

The EEOC figures there are lots of other former U.S. Steel employees discharged during their initial, probationary period because of random alcohol testing.

So the agency is suing on DeSimone’s behalf and also hopes to represent anyone else U.S. Steel fired because of the policy.

It’s also suing the union, which you might think would be defending employees, not conspiring with the company to have them fired after being subjected to such a test. But since 2006, the collective bargaining agreement covering U.S. Steel employees has specifically allowed the policy. The union conceded that point in a court filing, while denying that it should be subject to the suit.

Union on Board

The EEOC seeks monetary damages for wrongly fired employees and an immediate end to the practice.

Attempts to reach the union or its lawyers failed. The Steelworkers office was shut for the holiday and its phone, as well as the direct lines of two of its lawyers, went unanswered. At U.S. Steel, a spokeswoman said the company wouldn’t discuss pending litigation. As for general policy questions, she referred me to the company’s labor relations office, which didn’t return two phone messages.

Companies can, of course, prohibit employees from ingesting alcohol or illegal drugs at work and from showing up impaired by either. If management has grounds to suspect someone is breaking those rules -- excessive absenteeism or accidents, slurred speech or bizarre behavior -- it can haul out the breathalyzer, the syringe or the cup.

And the company can subject would-be hires to testing before their first day, as long as it does so with everyone about to be employed for that kind of job.

Don’t Look Back

As for recovering alcoholics or ex-drug addicts, employers can’t turn them away because of their histories. That would be discriminating on the basis of disability.

The guiding standard is that, as long as employees perform the tasks the job requires and endanger neither themselves nor others, you can’t check their breath or bodily fluids for alcohol.

This all seems reasonable, as the rules focus on the worker at work, not at home or with friends after hours, for the most part. But that focus blurs if the question is whether marijuana, cocaine or other controlled substances are involved.

The protection for employees against random alcohol testing doesn’t apply to checking for illegal drug use. For that, a specific exemption in the law allows management to test whomever it wants, whenever it wants, no reason necessary.

It’s understandable that legitimate employers don’t want to hire applicants engaged in criminal conduct.

Easier on Alcohol

But if the point of testing is to reduce workplace accidents and ensure workers are clear-headed enough to do their jobs, it doesn’t make sense that the law makes it tougher to test for alcohol than for drugs.

More than 11 percent of the adult workforce drank alcohol during or just before the workday at least once over the previous year, addiction researcher Michael Frone at the University of New York at Buffalo reported in a 2006 article. That was almost four times the number who used illegal drugs under those circumstances, Frone reported in another 2006 article.

We aren’t talking about people who take an occasional glass of wine over lunch with a client. More than 57 million workers were binge drinkers or otherwise imbibed large quantities of alcohol, according to a survey conducted in 2007 by the U.S. Department of Health and Human Services. By contrast, there were 10.2 million illicit drugs users, meaning people who used it at least once during the previous month, the survey found.

So where is the greater danger of producing fuzzy-headed workers?

Society’s Standards

The looser rules for drug testing in the workplace reflect society’s view that those substances are more dangerous than alcohol, which is also the reason marijuana is illegal and gin isn’t.

At any rate, if you plan a substantial alcohol intake for New Year’s Eve, and perhaps more for football games or open houses on New Year’s Day, take care not to endanger yourself or anyone else.

And if you don’t want to give the boss a reason to bring out the breathalyzer, show up for work Monday stone-cold sober.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net