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Response to Alcohol Testing by FAM Mgmt.

FLEOA Response to Inane Alcohol Testing Instituted by FAM Management

March 23, 2015


Francine J. Kerner, Esq.
Chief Counsel
Office of Chief Counsel
Transportation Security Administration
601 South 12th Street
Arlington, VA 20598
Fax: (571) 227-2555


Re:  Office of Inspection ("OOI") Alcohol Testing Policy

Dear Ms. Kerner:

Please be advised that I am General Counsel to the Federal Law Enforcement Officers Association and in that capacity represent our members who are Federal Air Marshals ("FAMs").   I have been informed that the Federal Air Marshal Service ("FAMS"), by its Office of Inspection ("OOI”), now intends to, or has, implemented either random or reasonable suspicion alcohol breath testing on its FAMs.  Apparently, it is contemplated that breath tests will be implemented in the field on both international and domestic missions.   

OOI has not made known  its procedures for identifying FAMs to be tested (either on the basis of random selection or reasonable suspicion) or, if confined to reasonable suspicion testing, what  the predicate is for determining what observational facts rise to the level of a suspicion of intoxication which would justify the immediate intrusion of a breath test.  Nor it is known where such a test is contemplated to be administered.  Will FAMs suffer the ignominy and intrusiveness of a breath test in a public space at an airport?  It is the position of FLEOA that random testing of FAMs as a class, in the absence of a reasonable belief that an individual FAM is under the influence of alcohol at work is a direct violation of the Americans with Disabilities Act (42 USC Section 12101, et seq.) ("ADA").   

Alternatively, if the breath test policy is confined to reasonable suspicion testing as perceived by agents of the OOI, there is a genuine concern that pro-active efforts by OOI to target and surveil  a general class of FAMs, in the absence of any evidence that intoxication is at all pervasive in the FAM workplace, will necessarily result in pretextual reasons based simply on the subjective impressions of the OOI agent to breath test a FAM who otherwise has not demonstrated any indicia of intoxication at work, which is also a violation of the ADA.   

Under the ADA, an employer must have objective rationalized evidence that an employee either cannot perform the essential functions of the job or poses a direct threat in order to subject the employee to an alcohol breath test.  See Tice v. Centre Area Transp. Auth., 24 F.3d 506, 518 (3rd Cir. 2001).  In order to foster transparency, if breath tests are random, what procedures are in place to prescribe the selection process?  If the breath tests are based on reasonable suspicion, how are the suspicions of the OOI agents to be documented and vetted as a control on accuracy?

A.    Alcohol Breath Testing is a Medical Examination and Inquiry as Defined by the ADA

    TSA's policy of alcohol breath testing FAMs constitutes a medical examination and inquiry pursuant to 42 USC Section 12112(d)(4)(A).  The ADA limits the discretion of employers to subject their employees to medical examinations or inquiries, unless the challenged practice is covered by a business necessity exception:

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

42 USC Section 12112(d)(4)(A).

    Neither the random nor the potentially pretextual reasonable suspicion alcohol breath test is covered by the "job-related and consistent with business necessity" exception built into the ADA's broad ban on medical testing.  Broad and generalized unwarranted assumptions of purportedly pervasive intoxication of FAMs at work do not meet the business necessity exception.  FAMS Director Allison, in announcing the testing policy, stated that the "[a]lthough the overwhelming majority of our workforce are mission focused dedicated professionals, TSA had to take steps to curtail the behavior of a handful of employees who continue to engage in egregious misconduct."  [Emphasis added.]  A "handful" of recalcitrant employees does not rise to the level of a "business necessity" to justify either random testing or aggressive pro-active reasonable suspicion breath testing based on generalized surveillance of otherwise dutiful FAMs.

    Under the ADA, a disability-related inquiry is a "question (or series of questions) that is likely to elicit information about a disability."  EEOC Enforcement Guidance:  Disability-Related Inquiry and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 27, 2000).  ("EEOC Guidance.")

    Similarly, for purposes of the ADA, a disability-related medical examination is a procedure or test that seeks information about an individual's physical or mental impairment or health.  Kroll v. White Lake Ambulance Auth. v. White Lake Ambulance Auth., 691 F.3d 809, 816, 818 (6th Cir. 2012).   It is obvious that an alcohol breath test constitutes a "medical examination" or "inquiry" within the meaning of the ADA.  Testing for alcohol use is testing for a "mental impairment," that is, whether a FAM is under the influence of alcohol at the time of the test.  

    In addition, the plain language of Section 12112(d)(4)(A) makes clear that the ADA's protections against medical examinations and inquiries extends to all employees, regardless of disability status.  In Section 12112(d)(4)(A), Congress expressly prohibited employers from conducting medical examinations or making inquiries "of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination is shown to be job-related and consistent with business necessity."  42 USC Section 12112(d)(4)(A).  [Emphasis added.]  This is in direct contrast to several of the ADA's other antidiscrimination provisions, which expressly limit protection to qualified individuals with disabilities.  See, e.g.  42 USC Section 12112(a) (prohibiting certain types of discrimination against a "qualified individual with a disability").  Accordingly, any and all employees -- disabled or not--are protected by the ADA against examinations and inquiries.
See also Lee v. City of Columbia, 636 F.3d 245,252 (6th Cir. 2011).

B.    TSA's Policy is not Job-Related and Consistent with Business Necessity.

    The employer bears the burden of showing that a medical examination is "job-related and consistent with business necessity."   Pennsylvania State Troopers Assn. v. Miller, 621 F. Supp. 2d 246, 252 (MD. Pa. 2008). "The ADA's requirement that a [medical examination] be consistent with business necessity is an objective one."  Tice, supra.   In determining whether an employer has shown that a medical examination or inquiry is job-related and consistent with business necessity, courts have first required employers to establish that:  (1) a business necessity exists; and (2) the policy at issue serves the asserted business necessity (applying a two-step analytical framework).  

    A business necessity that could warrant a medical examination must be vital to a business, such as ensuring that the workplace is safe.  Id.  There is no question that maintaining workplace safety is a legitimate and vital business necessity.  See TIce , 247 F.3d at 517.  Rather, the focus of this dispute is whether a policy of conducting random or potentially pretextual breath alcohol tests of FAMs sufficiently serves the asserted safety rationale.

    In order to show that the policy at issue serves the asserted business necessity, employers must demonstrate that the examination or inquiry at issue "genuinely serves the asserted business necessity and...is no broader or more intrusive than necessary.  Conroy v. N.Y. State Dept. of Corr. Servs., 333 F.3d 88, 98 (2nd Cir. 2003).  It is FLEOA's position that Section 12112(d)(4)(A) does not permit medical testing unless and until the employer has an individualized, reasonable (objective) suspicion of a safety concern.  We reason that because a random alcohol breath testing policy cannot supply the requisite individualized, reasonable suspicion of intoxication, such testing must be per se invalid.  Further, reasonable suspicion testing must be based on objective evidence of intoxication, yet there are no promulgated standards to guide OOI agents with the criteria to justify a reasonable suspicion breath test nor any apparent requisite documentation required before a breath test is administered.  This unchecked authority of OOI agents administer breath tests can result in the actual or even the appearance of administration of breath tests at the mere whim of an OOI agent, with no demonstration of rationalized suspicion of intoxication.

    There is ample support for the proposition that an employer must generally possess some minimal job-related justification before insisting on a medical examination.  As the Third Circuit suggests, an employer may only support an employee to a medical examination when it "ha[s] good reason to be doubtful of [the employee's] abilities."  Tice, 247 F.3d at 519; see also Ward v. Merck & Co., Inc., 226 Fed. App'x 131, 139 & no. 20 (3rd Cir. 2007) (permitting a fitness-for-duty evaluation in response to complaints about the plaintiff's work performance and his strange behavior among his fellow employees, stating that an employer should "identify a legitimate, non-discriminatory reason[] to doubt the employee's capacity to perform his or her duties").   (quoting Conroy, 333 F.3d at 98).  On what basis has the new policy given assurances to our members that if a breath test is administered to a FAM that there was "good reason” to do so?

    The possibility that FAMs would arrive at work intoxicated is not an actual problem, agency wide, nor is it pervasive within the corps of FAMs.  Most FAMs are regular employees who remain on the job for a long period of time and have proven that they can follow the appropriate safety standards and adequately perform their job on a daily basis.  In order to justify random or potentially pretextual alcohol-breath testing to the entire class of FAMs, on generalized assumptions of alcohol abuse,  the employer would have to show that FAMs generally by virtue of inexperience or as a matter of historical record, pose an elevated risk to workplace safety by reason of alcohol intoxication.  There is no such proof here.  It is not difficult for managers as well as fellow FAMs (who work closely together) to single out the few employees who are under the influence of alcohol while on the job.   It is overbroad and intrusive to require OOI agents to surveil FAMs, possibly exposing the FAMs to the public, as well as criminal elements, and consequently compromising a mission as well as the lives and safety of the traveling public, and FAMs.

    FAMs travel in teams and are familiar with one another on the trips.  Further, FAMs are supervised in small groups by supervisors who are familiar with their personnel.

    This announced alcohol breath test policy contravenes the requirement articulated in Pennsylvania State Troopers that the testing be narrowly tailored rather than broad and intrusive.  Surveilling the FAMS as a class is overbroad and unnecessarily intrusive, in order to ferret out only a "handful" of FAMs who show up to work under the influence.  There is no proof that FAMs generally in contrast to a "handful," are likely to engage in risky behavior like abuse of alcohol at work.  Likewise, there is no demonstration that fellow team members or supervisors, who work in close proximity to each other, could not detect signs of impairment on the few FAMs who pose such a risk.

    The ADA is intended to "combat the type of generalized assumptions [TSA] makes here, and that is why the statute requires individualized assessments, such as ...conducting a direct threat analysis."  Coffman v. Indianapolis Fire Dept., 578 F.3d 559, 565-66 (7th Cir. 2009).   The individualized assessments should not be based upon pretext by proactive OOI agents charged with surveilling our FAMs, with no check or control mechanism to assess the propriety of suspicion, which must be based upon a rationalized objectivity of signs of intoxication.  There are no policy mechanisms in place to assure that breath testing will not be administered on an arbitrary and capricious basis.

    It is respectfully requested that the TSA immediately rescind its alcohol-breath test policy because it violates the ADA.

Respectfully,

Lawrence Berger, Esq.