Federal Law > Hiring Employees > Employment Testing

Employment Testing

 

Employers today test employees for a variety of different reasons. This chapter addresses some of the more common employment tests.

DRUG TESTING

In recent years employers have substantially increased the drug testing of applicants and employees due to the increased cost of workers who abuse alcohol or drugs. Employees who are impaired by substance abuse are frequently absent, have lower productivity, and are dangerous to themselves and others. As a result of problems associated with employees using drugs and alcohol in the workplace, the federal government has mandated drug testing in certain industries.

However, in response to the increase in drug testing by employers, some states have instituted laws which restrict drug and alcohol testing of applicants and employees. In addition, lawsuits challenging drug testing programs have also increased. This chapter provides a brief overview of certain federal drug testing laws. Each state has implemented its own laws concerning drug testing of applicants and employees, and you should consult a competent attorney before implementing a drug testing program.

Drug-Free Workplace Act of 1988. The Drug-Free Workplace Act of 19881 provides that persons who receive federal contracts of twenty-five thousand dollars or more, or persons who receive grants from the federal government, are required to maintain drug-free workplaces under this Act. The Act does not require drug testing, but imposes several obligations on federal contractors and grantees. Under the Act, persons other than individuals must do the following:

1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the person's workplace, and specify the disciplinary action that will be taken against employees for violation of this policy. In addition, this statement to the employees must also indicate that the employee must notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction. Finally, the employer must inform the employees that it is a condition of employment that the employee abide by the terms of the statement.

2. In addition to the publication requirement, each employee engaged in the performance of work under the grant or contract must be given a copy of the statement.

3. The contractor or grantee will establish a drug-free awareness program to inform employees about the dangers of drug abuse in the workplace, the policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations.

4. The contractor or grantee will notify the contracting agency within ten days after receiving notice of a drug-related criminal conviction for a violation occurring in the workplace.

5. The contractor or grantee will impose a sanction on, or require the satisfactory participation in, a drug abuse assistance or rehabilitation program by any employee who is so convicted.

6. The contractor or grantee will make a good faith effort to continue to maintain a drug-free workplace through implementation of the above.

The Drug-free Workplace Act provides for sanctions ranging from suspension of payments under the contract to termination of the contract to suspension or debarment of the contractor or grantee. Debarment means that the contractor or grantee will be ineligible for participation in any future government contracts for a period of up to five years.

The Drug-free Workplace Act does not require a contractor or grantee to conduct any drug tests of employees. However, drug testing has increased as a result of the Act.

Department of Transportation, Federal Highway Administration. Drug testing has been mandated by DOT regulations for motor carriers who operate commercial motor vehicles in interstate commerce since 1989.2 These regulations have required a variety of testing including preemployment, reasonable cause, periodic, random, post-accident, return-to-duty and follow-up testing.

The rules have also required that covered employers establish training programs on the affects of controlled substances, procedures for the collection of urine samples, security and analysis of specimens, use of a medical review officer to verify test results, privacy, confidentiality, and recordkeeping requirements. DOT rules are specific in explaining the type of testing and procedures to be utilized to insure privacy, accuracy and proper chain of custody of specimens.3 The rules require testing of marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP).

The DOT published rules in February, 1994, mandating drug and alcohol prevention programs. The rules expand and supplement the drug testing rules to include alcohol testing, testing of intrastate and interstate drivers of commercial motor vehicles requiring a commercial drivers license, split sample drug testing and requires referrals for treatment. These rules are a result of passage of the Onmibus Transportation Employees Testing Act of 1991.

The February, 1994, rules generally require implementation to begin on January 1, 1995, for employers with 50 or more drivers, and January 1, 1996, for all other employers. The rules require preemployment, post-accident, reasonable suspicion, random, return-to-duty and follow-up testing.

Case law has been supportive of government regulations which demand random or periodic testing to insure that commercial drivers and others in safety-sensitive positions governed by appropriate regulations are, in fact, drug free.4 Nevertheless, employers should be careful to consult a competent professional when implementing a drug and alcohol testing program as the rules are very extensive and the above is a brief overview of the requirements.

Use Caution When Drug Testing. It is important that you discuss implementation of a drug testing program with a qualified attorney prior to implementation of such a program. Whether you implement such a program will depend upon the industry in which you work, whether testing is mandated in that industry, state laws concerning drug testing and invasion of privacy, and whether you can detect drug usage without invasive drug testing procedures.

In addition to state laws which may restrict drug testing due to privacy concerns, there's also potential for common law invasion of privacy claims, defamation claims, constitutional claims if state action is involved, and other tort claims such a negligent infliction of emotional distress. For these reasons, many employers avoid drug testing, and instead, look for signs that may indicate drug usage and avoid hiring or terminate employees for misconduct. However, it should be noted that generally, pre-employment testing is less likely to cause problems for an employer, assuming it is done properly.

POLYGRAPH TESTING

As a general rule, polygraph testing by private employers is frowned upon. In most instances, state and federal laws will prohibit a private employer from indiscriminately using polygraph exams to verify the truth and honesty of applicants or employees in the workplace. The rationale for the statutory prohibitions centers predominately upon the overall lack of scientific reliability of the polygraph or lie detector tests.

Congress enacted the Employee Polygraph Protection Act of 1988 for the purpose of insuring that most private employers do not use lie detector tests for pre-employment or employment testing. When an employer is subject to the Act, it prohibits an employer from using a lie detector in the following manner:

1. An employer may not require, request, suggest, or cause, directly or indirectly, any employee or prospective employee to take or submit to any lie detector test.

2. An employer may not use, accept, or inquire concerning the results of any lie detector test of any employee or prospective employee.

3. An employer may not discharge, discipline, discriminate against, deny employment or promotion, or threaten any employee to take such action for refusal or failure to take or submit to such a test on the basis of the results of the test, for filing a complaint, for testifying in a proceeding, or for exercising any right afforded by the Act.5

The statute contains limited exemptions to the overall statutory prohibition that private employers may not utilize polygraph or lie detector tests in the work- place. The exemptions can be identified as follows:

1. Government Employees

2. National defense and security

3. FBI Contractors

4. Investigation of economic loss or injury.

5. An employer who is authorized to manufacture, distribute or dispense controlled substances.

6. The employer whose primary business is that of providing security services.6

Even where these limited exemptions apply, an employer must jump through a number of procedural hoops to satisfy the provisions of the Act. As an example, an employer who seeks to utilize a polygraph examination during the course of an investigation of economic loss or injury must satisfy the following criteria:

1. The exam must be done in conjunction with an ongoing investigation of economic loss or injury.

2. It must be shown that the employee had access to the property which is the subject of the investigation.

3. There must exist a reasonable suspicion that the employee was involved in the incident under investigation.

4. The employer must provide the employee with a written statement explaining the incident under investigation while also providing a detailed description of the employee's access to the property and information about the employer's reasonable suspicion that the employee was involved. The written statement must be signed by an agent of the employer and must be preserved for a three-year period for inspection by the Department of Labor. The Act also contains a number of provisions which define the parameters of an ongoing investigation and the type of economic loss or injury which the employer is permitted to investigate.7

Where an employer is engaged in the manufacturing, dispensation, or distribution of controlled substances, polygraph tests may be given under the following circumstances:

1. The prospective employee would have direct access to such controlled substances; or

2. A current employee is tested in conjunction with some type of ongoing investigation of misconduct involving loss or injury and the employee had access to the property which is at issue in the investigation.8

Employers whose primary business is providing security services may also utilize polygraph tests under limited circumstances. Prospective employees may be tested prior to hire in some limited circumstances involving critical safety and health issues, as well as when the applicant will provide security service for "currency, negotiable securities, precious commodities, or instruments or proprietary information".9 Current employees in the security service industry may also be tested in connection with an ongoing investigation.

Employers who contemplate attempting to use polygraph examinations in the workplace should carefully scrutinize federal and state law on this issue. While an exemption under federal law may appear to permit utilization of a lie detector or polygraph exam for a limited purpose, that exemption might be foreclosed under state law, or vice versa. Perhaps the bottom line on this issue is that an employer would be well advised to tread cautiously into the area of truth and honesty testing in employment. The utilization of mechanical tests are stringently governed by the Employee Polygraph Protection Act and various state laws. It is the rare exception, rather than the rule, when an employer can successfully utilize such mechanical tests to determine the truth and veracity of employees in the workplace.

EMPLOYMENT TESTING UNDER THE ADA

Employers have utilized tests in the workplace for over a hundred years to determine the competency of applicants and employees to perform assigned work. Testing has ranged from typing and other forms of clerical exams to certifications to language proficiency and even physical agility and strength tests. Employers who utilize such tests believe that the tests are necessary to hire and retain employees who will fully assist them in fulfilling the mission of their business.

Subject to certain restrictions detailed in the Federal Rehabilitation Act of 1973 and the Americans with Disabilities Act an employer can engage in testing which may tend to screen out individuals with disabilities provided such tests are job related and consistent with business necessity. However, an employer subject to jurisdiction under these Acts still has the obligation to provide reasonable accommodation for a qualified individual with a disability, and is subject to a number of other restrictions as described in Chapters Two and Nine concerning the Americans with Disabilities Act.

In most situations, any test which would tend to implicate an individual's sex, race, national origin, religion, or age, either directly or indirectly, are clearly impermissible, unless they are job related and consistent with business necessity. In most instances, a test which tends to be result oriented based upon those protected classifications would not be job related and consistent with business necessity.

Testing critical skills is permissible provided the tests are sufficiently validated, job related, consistent with business necessity, and meet the other requirements of the Americans with Disabilities Act. As a general rule, employers would be wise to consult with legal counsel and retain outside expertise to structure employment tests if there is any question about their job relatedness.



SOURCES
  1. 41 U.S.C. 701 et seq.

  2. 49 CFR Parts 391 and 394.

  3. 49 CFR Part 40
  4. See, International Bd. of Teamsters v. Department of Transportation, 932 F.2d 1292, 1304-05 (9th Cir.1991) (holding random drug testing for commercial drivers despite lack of hard evidence revealing a serious drug abuse problem.): Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990) (upholding testing of airplane flight crew members, airplane maintenance personnel, and air traffic controllers) cert. denied, 111 S. Ct. 954 (1991).

  5. 29 U.S.C. § 2002

  6. 29 U.S.C. § 2006.

  7. 29 U.S.C. § 2006 (d).

  8. 29 U.S.C. § 2006 (f)

  9. 29 U.S.C. § 2006 (e)
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