Workplace Testing: What Your Employer May Require

Workplace testing has become popular as employers screen their workers in an effort to figure out who would be the best candidate for promotion or who is responsible for a workplace problem. In certain situations, employers might ask employees to submit to medical exams, drug tests, psychological screening, or lie detector tests.

Not all workplace testing is legal, however. There are limits to how far an employer can go. Read on to learn what employers can and cannot do when it comes to workplace testing.

Which Tests Are Legal

Generally, an employer must have a sound, work-related reason to require a current employee to submit to testing. However, even that might not be enough: If the test is too intrusive or delves too deeply into personal issues, it might unlawfully invade the employee's right to privacy.

Unfortunately for everyone involved, there are no hard and fast rules about whether a particular test is legal -- courts usually decide these issues on a case-by-case basis, looking at all the facts and circumstances. For the most part, you can assess whether a test is unreasonable by using common sense. If it makes you very uncomfortable or seems unrelated to your employer's business interests, then you might be within your rights to cry foul. For example, an employer who inquires into your sex life or your religious or political beliefs probably crosses the line, while an employer who tests only for necessary job skills is probably on safe ground.

Regardless of whether the test would otherwise be reasonable, it will be illegal if it unfairly screens out workers with disabilities who could do the job with a reasonable accommodation. That would violate the federal Americans with Disabilities Act (ADA) and similar state laws that protect against disability discrimination.

In addition to these general considerations, specific rules apply to the following types of tests.

Medical Examinations

Once an employee is on the job, an employer's right to conduct a medical examination is usually limited to so-called "fitness for duty" situations. If an employee exhibits objective indications that he or she is physically or mentally unfit to perform the essential functions of the job (for example, by claiming an injury that makes working impossible), an employer may request that the employee's fitness for the job be evaluated by a medical examiner.

Although the medical examiner can take a full history of the employee and conduct necessary tests to evaluate the employee's fitness, the employer is not generally entitled to all of this information -- only to the examiner's conclusions about whether the employee can work. Many states also impose strict limits on the information a doctor may disclose to an employer or an insurance company without the worker's consent.

Similarly, although an employer may request a medical certification from an employee who needs to take leave under the Family and Medical Leave Act (FMLA), the employer is entitled only to specific information about the employee's need for leave -- not to a full health screening or medical history.

The law also imposes certain privacy protections for the results of a medical examination. Data gathered in medical examinations must be kept in a separate personnel file available only to those with a demonstrable need to know, such as supervisors -- who may need information about the employee's work restrictions or reasonable accommodations -- and first aid and safety personnel (if the employee's disability might require emergency treatment).

Drug Tests

Although an employer can generally require job applicants to submit to drug testing, an employer's right to test current employees is less clear. No federal law specifically authorizes drug testing of employees, except for certain workers in the defense and transportation industries. Many state laws, however, limit the circumstances under which an employer may test for drugs and the types of tests an employer may conduct.

If your employer wants to conduct a drug test, look into your state's law, because the rules vary from state to state. (Contact your state labor department for more information.) What is acceptable in one state may not be acceptable in another.

That being said, your employer is most likely to be on sure legal footing if it limits testing to:

• workers whose jobs carry a high risk of injury to themselves or others (such as a pilot or a security guard who carries a gun)
• workers who have been involved in an accident that suggests the possibility of drug use (for example, a delivery driver who causes a collision by driving erratically)
• workers who are currently in or have completed a rehabilitation program, and
• workers whom a manager or supervisor reasonably suspects are using drugs (based on, for example, obvious signs of impairment such as slurred speech or glassy eyes).

Psychological Screening

Some employers use pencil-and-paper (or keyboard-and-screen) psychological tests to attempt to predict whether an employee will steal, fight, or engage in other negative conduct in the workplace. There are two problems with such tests. First, whether these tests actually predict an employee's future conduct is heavily disputed. Second, many of the test questions are highly personal and invade the employee's privacy. If you are asked to take one of these tests, you might have a good argument that there is no legitimate business reason for the test and that the test unreasonably invades your privacy.

Lie Detector Tests

A federal law, the Employee Polygraph Protection Act (29 U.S.C. § 2001), prohibits most private employers from requiring their workers to submit to lie detector tests, with one exception: An employer may require a worker it reasonably suspects of theft or embezzlement to take a polygraph test, if certain requirements are met. Aside from this limited exception, however, an employer may not require a current employee to take a lie detector test, use the results of any such test, or discipline or fire any employee who refuses to take one. Most states ban polygraph testing outright in any circumstances.

For more information on whether a test your employer wants you to take is legal in your state, consult your state labor department. For a complete guide to workplace laws, see Your Rights in the Workplace, by Barbara Repa (Nolo).