Workplace Testing | Privacy Right

Ostensibly, prospective employers and employees want the same thing: to match the best person with the most fitting job. These days, there are a number of tests that purport to take the guesswork out of the process. Ploughing through the Information Age and into the Biotech Century, many employers are quick to welcome outside evaluations of an individual’s mental and physical fitness and integrity and to believe in their results—often at the risk of sacrificing individual privacy rights.

1. Medical Examinations

A number of insurers require employees to undergo medical evaluations before coverage will begin. Beyond, and often in addition to, that, employers may require specific physical and mental examinations to ensure a qualified workforce. However, there are strict rules on when those exams can be conducted and who can learn the results.

Courts have ruled that the constitutional right to privacy covers medical information and that honesty is the only policy when it comes to medical tests for prospective and existing employees. That is, employers must identify what conditions they are testing for—and get individual consent to perform the tests, first.

a. Examining Job Applicants

Employers may legally give prospective employees medical exams to make sure they are physically able to perform their jobs. However, timing is crucial. Under the federal Americans With Disabilities Act, or ADA covered employers cannot require medical examinations before offering an individual a job. They are, however, free to make an employment offer contingent upon a person’s passing a medical exam.

The ADA also requires your employer to keep your medical history and exam results in a file separate from your other personnel records. Only a few individuals have the right to see your medical file:

• a supervisor who needs to know whether your medical condition or health requires that you be specially accommodated within the workplace

• First Aid or medical personnel who need to administer emergency treatment, and

• government officials who are checking to be sure your employer is complying with the ADA.

During the course of a medical exam, a company-assigned doctor may ask anything at all about an applicant’s health and medical history. However, the final medical evaluation is supposed to include only a stripped-down conclusion: able to work, able to work with restrictions, not able to work.

b. Examining Existing Employees

Employees can be required to take a physical or psychological examination after they are hired only if there is a reason to believe they are jeopardizing the health and safety of the workplace. For example, several courts have opined that if an employee clearly appears to be homicidal or suicidal, then an employer may have the duty to require a psychological exam, or even inform coworkers of the condition, in the name of workplace safety.

Again, while an examining doctor or psychologist has freer reign to ask questions as part of the examination of these employees than of applicants, the final evaluation revealed to an employer is supposed to be succinct and free of detail: able to work, able to work with restrictions, not able to work.

2. Drug and Alcohol Testing

The abuse of alcohol and drugs such as cocaine has been widely publicized for many years—and many private employers now test for drug and alcohol use. The laws regulating drug abuse in the workplace and the testing of employees for such abuse, however, are relatively new and still being shaped by the courts. Currently, there is a hodgepodge of legal rules controlling drug testing—some in the Americans With Disabilities Act, some set out in specific state laws (see the chart below), and a number arrived at through court decisions.

Testing is an institution rather than an aberration in many workplaces these days. About 63% of major U.S. companies regularly test for drugs and alcohol, according to a 2004 poll by the American Management Association. Some of that is explained by the passage, in 1988, of the Drug-Free Workplace Act. (102 Stat. § 4181.) That law dictates that workplaces receiving federal grants or contracts must be drug-free or lose the funding, although it does not call for testing or monitoring workers.

Work-related drug tests take a number of forms. Analyzing urine samples is the method most commonly used, but samples of a worker’s blood, hair, and breath can also be tested for the presence of alcohol or other drugs in the body. Typically, state laws set out the testing methods that may or must be used. Many statutes provide for retesting, at the employee’s expense, if the initial results are positive.

Metabolics of illegal substances remain in urine for various periods: cocaine for approximately 72 hours, marijuana for three weeks or more. Detectable residues apparently remain in hair samples for several months.

a. Testing Job Applicants

In general, employers have the right to test new job applicants for traces of drugs in their systems as long as all of the following are true:

• The applicant knows that such testing will be part of the screening process for new employees.

• The employer has already offered the applicant the job.

• All applicants for the same job are tested similarly.

• The tests are administered by a state-certified laboratory.

Today, most companies that intend to conduct drug testing on job candidates include in their job applications an agreement to submit to such testing. If, in the process of applying for a job, you are asked to agree to drug testing, you have little choice but to agree to the test or drop out as an applicant.

b. Testing Existing Employees

There are a number of employees who, because of their specialized positions or type of work, can be tested more freely for drugs and alcohol use. For example, the Department of Transportation requires drug testing for some critical positions, such as airline pilots. In addition, courts have routinely approved random drug testing for employees with national security clearances, prison officers, employees at chemical weapons and nuclear power plants, and police officers. Note, however, that while many laws allow such employees to be tested, they do not require automatic discharges if the results are positive.

But there are some legal constraints on testing existing employees in most private employment jobs for drug usage. Companies cannot usually conduct blanket drug tests of all employees or random drug tests; the testing must usually be focused on an individual. In some cases where employers have tested for drugs without good reason, the employees affected have sued successfully for invasion of privacy and infliction of emotional harm.

However, the courts have generally ruled that companies may test for drugs among employees whose actions could clearly cause human injury or property damage if their performances were impaired by drugs, and in cases where there is good reason to think that the employees are abusing drugs. For example, a bulldozer operator who swerved the machine illogically through a field crowded with workers could be the legal target of drug testing.

And a legal secretary found slumped at her desk, unable to respond cogently to questions asked of her, was also considered fair game for a drug test.

c. Challenging Drug Tests

As an employee, you can always refuse to take a workplace drug test. But, if you are fired because of your refusal, you may have little recourse. Your employer needs only to show that he or she had good reason to believe that you were a safety hazard on the job or that you seemed unable to perform the work required. You would be placed in the untenable position of proving that your employer knew no such thing. You may, however, be able to win your job back if you can show that you were treated differently from other employees in the same position.

If you have been given a drug test and unfairly suspended or demoted because of it, your best bet may be to argue that the testers did not meet with the strict requirements for form and procedure set out in your state law. (See the chart below.) And note that employers are free to add safeguards to protect against specimen tampering—requiring those taking the test to remove their own clothing and don hospital gowns or providing a test monitor who checks the temperature of the urine and adds dye to toilet water, as examples. However, a modicum of discretion is required; while most courts have found it reasonable to have a monitor listen as a urine test is administered, a number have found it an unreasonable invasion of privacy for the monitor to watch.

In addition, many laws require employers to maintain workplace counseling and outreach programs before they can test employees. While most employers these days are too savvy to slip up on procedural details, many of the laws are so picky and detailed that it may be worth your while to wade through and see whether your test made the grade.

d. State and Local Drug Testing Laws

As mentioned, a number of state courts have set out rulings defining when and why drug tests may be given. Some recent examples:

• Two employees at an electronic equipment manufacturer, a truck driver and an editor of the company’s user manuals, challenged the company’s random drug testing program. A Massachusetts court found that the employer’s legitimate business interests justified the drug test of the driver, whose job involved safety and liability risks. However, the court held that testing the editor was impermissible and that the employee’s privacy interests outweighed the employer’s interests, because the company failed to show a sufficient connection between his job duties and any harms feared. It noted specifically that he did not have a security clearance at the company, nor did he work directly on matters of national security. (Webster v. Motorola, Inc., 637 N.E. 2d 203 (1994).)

• An employee was required to submit to a drug test when she was hired at a Denver car dealer. Nearly a year later, her employer informed her that it had overlooked the test result, which was positive for marijuana. When another test was inconclusive, she refused to take the test again and was terminated. A Colorado court held that the state did not have a clearly expressed employee right to refuse drug testing, rejecting the employee’s contention that the testing invaded her privacy. (Slaughter v. John Elway Dodge Southwest/AutoNation, 2005 Colo. App. LEXIS 35 (2005).)

• The city of Seattle required a preemployment urinalysis drug test for about half its positions. Several taxpayers challenged the constitutionality of this program, though none claimed to have applied to respondent for employment. A Washington court likened drug testing to a warrantless search that could not be justified merely by concerns of cost and efficiency. It noted that Seattle’s testing program was applied too broadly to positions, such as librarians and accountants, that did not implicate public safety issues. (Robinson v. City of Seattle, 102 Wn. App. 795 (2000).)

In addition, a number of states and several municipalities have laws that regulate workrelated testing for substance abuse. Those that do also specify the scientific procedures to which testing labs must adhere. And many of these laws provide ways of dealing with overbroad or abusive workplace drug testing that are simpler, quicker, and less expensive than filing a lawsuit. Some states also require companies to distribute to employees written policies on drug testing and rehabilitation.

3. Psychological Testing

A number of people who label themselves as Workplace Consultants claim they have developed several series of written questions—integrity tests—that can predict whether a person would lie, steal, or be unreliable if hired for a particular job. And a number of other alleged experts claim to have perfected personality tests that allow employers to tell in advance whether an individual is suited by temperament and talent to a particular position. Employers are drawn to these tactics because they seem to short-circuit the process of interviewing—and because they seem to promise some insight into an applicant’s personality, which can be tough to assess in an interview setting.

Psychological tests are not a new idea. They were first developed during World War I to help the military decide how to assign soldiers to various jobs. Some legal cutbacks to personality and psychological testing in the workplace began in the 1970s, when employers were banned from questioning prospective employees about age, race, or sex. The tests had a heyday again in the early ’90s, shortly after lie-detector screening was curtailed by law. And, today, legions of test publishers have cropped up online—most of which claim they can forecast everything from a potential employee’s likelihood of being honest and hardworking to his or her absence and injury rate on the job. And they promise an analysis fast—often within 48 hours of receiving responses to test questions. Critics say that is a suspiciously tall order to fill so quickly. And there may be legal pitfalls to the tests as well. Despite the doubts that surround them, however, the employee screening tests remain popular with many employers, most of whom claim to temper their acceptance with a dollop of skepticism and to cast about for information in more subtle ways.

Today’s prescreening questionnaires usually cover legally forbidden topics in roundabout ways. For example, employers may glean information about marital and family status by asking applicants to give information about hobbies and other interests. And many employers—about 40% of them, according to the American Management Association—use these questionnaires in the process of screening applicants for job openings. But even that temptation has been curbed of late by a number of cases that send a clear warning: Psychological tests cannot be used as an excuse to discriminate against prospective employees—and they must be limited to job-related questions.

A few states have enacted laws against some specific forms of psychological testing. In New York, for example, employers may not require that job applicants or employees take psychological stress evaluator tests. (N.Y. Lab. Code §§ 733 to 739.)

4. Lie Detector Tests

For decades, lie detectors, or polygraphs, that purport to measure the truthfulness of a person’s statements by tracking bodily functions such as blood pressure and perspiration, were routinely used on employees and job applicants.

Employers could—and often did—ask employees and prospective employees questions about extremely private matters such as sexual preferences, toilet habits, and family finances, while a polygraph machine passed judgment on the truthfulness of the answers. Push the machine’s needle too far by reacting to an offensive question and you could be labeled a liar and denied employment.

The federal Employee Polygraph Protection Act (29 U.S.C. § 2001), passed in 1988, virtually outlawed using lie detectors in connection with employment. That law covers all private employers in interstate commerce, which includes just about every private company that uses the U.S. mail or the telephone system to send messages to someone in another state.

Under the Act, it is illegal for all private companies to:

• require, request, suggest, or cause any employee or job applicant to submit to a lie detector test

• use, accept, refer to, or inquire about the results of any lie detector test conducted on an employee or job applicant, or

• dismiss, discipline, discriminate against, or even threaten to take action against any employee or job applicant who refuses to take a lie detector test.

The law also prohibits employers from discriminating against or firing those who use its protections.

While government employees are not protected by this law, they are generally protected from lie detector tests by civil service rules.

a. When Lie Detector Tests Can Be Used

The Employee Polygraph Protection Act allows polygraph tests to be used in connection with jobs in security and handling drugs or in investigating a specific theft or other suspected crime. However, before you can be required to take such a test as part of an investigation of an employment-related crime, you must be given a written notice, at least 48 hours before the test, stating that you are a suspect. And there must be a provable, reasonable suspicion that you were involved in the theft or other conduct triggering the investigation.

The Act does not apply to employees of federal, state, or local government, nor to certain jobs that handle sensitive work relating to national defense.

b. Limitations on the Tests

In addition to the strict strictures on when and to whom the tests may be given, there are a number of restrictions on their format. Before a lie detector test can be administered, your employer must read to you and ask you to sign a statement that includes:

• a list of topics you cannot be asked about, including questions on religious beliefs, sexual preference, racial matters, lawful activities of labor organizations, and political affiliation

• information on your right to refuse to take the test

• the fact that you cannot be required to take the test as a condition of employment

• an explanation of how the test results can be used, and

• an explanation of your legal rights if the test is not given in keeping with the law.

While the test is being administered, you have the right:

• to stop it at any time, and

• to be asked questions in a way that is not “degrading or needlessly intrusive.”

When the test is said and done, results can be disclosed only to the employer who ordered the test, the employee who was tested, a court or government agency, or an arbitrator or mediator if there is a court order. The law specifically prohibits prospective employers from getting access to old test results.

c. How to Take Action

The Employee Polygraph Protection Act is enforced by the U.S. Department of Labor. If you have questions about whether the Act applies to your job or if you suspect that you have been subjected to illegal polygraph testing, call the office of the U.S. Labor Department’s Wage and Hour Division nearest you. It is listed in the federal government section of the telephone directory under Labor Department.

There is no official form for filing a complaint. If, after discussing your situation with a Wage and Hour Division investigator, you decide to file a complaint, do so as soon as possible by writing a letter addressed to your local Wage and Hour Division office. Include such details as the name and address of the employer, when the incident occurred, and the address and telephone number where an investigator can reach you. And keep a copy of your letter for your records.

If the Labor Department finds that your rights under the Act were violated, it can fine the employer up to $10,000 and issue an injunction ordering the employer to reinstate you to your job, promote you, compensate you for back wages, hire you, or take other logical action to correct the violation.

If the Labor Department’s action on your complaint does not satisfy you, you can file a lawsuit against the employer to obtain whatever compensation or other remedy would be appropriate. Move quickly, because the lawsuit must be filed within three years. You will probably need to hire an attorney to help you if you decide to file a lawsuit under this Act.But the law allows the court to grant you attorneys’ fees and other costs if you win.

d. State Laws on Lie Detector Tests

Some states have laws prohibiting or restricting employers from using lie detectors in connection with employment, but most have been made obsolete by the federal antipolygraph statute. Some states go farther and prohibit employers from even suggesting such a test.

In addition, state coverage may be broader; while the federal law does not apply to state and local government employees, many of the state statutes do.

Note that the laws in several states provide that an employee who volunteers to take a lie detector test may be given one. But such laws have safeguards, requiring that the tests be administered under approved and supervised conditions and that employees be clearly informed about how and why test results may be used.

5. AIDS Testing

The disease of Acquired Immune Deficiency Syndrome (AIDS) was first identified in 1981. Fairly early on, researchers isolated its viral cause, the Human Immunodeficiency Virus (HIV), which suppresses the immune systems of those who carry it, making them easy targets for various other infections and diseases. Since then, while great strides have been made in treating AIDS symptoms, there still is no cure. Many of those who have the HIV infection live nearly symptom-free. But, ultimately, the disease is still considered fatal—and is spreading.

The impact on American workplaces has been and will continue to be enormous. Not only have hundreds of thousands of workers died, most of them suffered also from the reactions of others—irrational fear and ostracism—that play in tandem with the AIDS epidemic: AFRAIDS. Many workplaces responded to the hysteria with more hysteria, developing intrusive policies of isolating workers suspected to have the disease.

Another offshoot of this hysteria is the practice of testing employees for the HIV virus. While a number of courts have struck down state and local efforts to screen employees for HIV, the practice continues in many workplaces.

a. Types of Tests

Although medical researchers may develop more methods of testing for the HIV virus, the test first approved for commercial use by the Food and Drug Administration in 1985 is still in use today. Basically, the test measures antibodies in the blood that are stimulated by the HIV virus. If a test is positive, indicating exposure to the deadly virus, a confirmation test is usually performed that uses a more complicated system of weighing molecular weights found in the blood.

However, there are a number of things the HIV antibody testing does not indicate. Tests do not identify people who have AIDS. AIDS is defined by the Centers for Disease Control (CDC), and the definition is still evolving. Currently, an individual is considered to have AIDS if he or she has any of the AIDS-related diseases specified by the CDC and has a T-count—or number of infection-fighting white corpuscles—of less than 200 in a cubic milliliter of blood.

Also, tests do not identify every person carrying the AIDS virus. The tests are aimed at measuring the antibodies stimulated by HIV, so they do not work effectively on individuals who have been exposed to the virus but have not developed antibodies to it—a period which usually takes about eight weeks, but may take up to a year or more.

b. Legal Controls on Testing

Originally, HIV blood tests were fashioned to screen blood, not people. But when prospective employees and employees are subjected to testing, the reality is that people are being screened—and sometimes labeled as unfit workers.

A federal law, the Americans With Disabilities Act, prohibits testing job applicants to screen out people with HIV or AIDS. Once an applicant is offered a job, however, the legal constraints on testing become a bit murkier. To avoid singling out any individual or group, which would be illegal discrimination, an employer would have to test all employees. Even then, to justify giving employees an HIV test, an employer would have to show that the test is necessary to determine whether applicants are fit to hold a job. This would be nearly an impossible task, as many people infected with HIV show no symptoms of ill health.

Most states have laws setting some controls on employers’ uses of HIV tests. Test results may not be used to determine suitability for insurance coverage or employment according to the laws in a number of states, including Florida. (Fla. Stat. § 381.004.) And Massachusetts bans employers from requiring employees to take a test as a condition of employment. (Mass. Gen. Laws ch. 111, § 70f.)

In addition, a number of cities have enacted ordinances that put additional limits on how and when employers may test for HIV and AIDS. A strict law in San Francisco, for example, states that employers cannot test for AIDS unless they can show that the absence of AIDS is an essential employment qualification. (San Francisco Police Code §§ 3801-16.)

This area of the law is changing very rapidly. Double check your local, state, and federal law for recent changes. A local clinic, support group, or AIDS hotline may be able to provide you with the most up-to-date local information. A number of organizations also offer information on the HIV virus, AIDS, and resources on AIDS in the workplace.