BY Donald J. Spero, Esq.

I. Skill and Aptitude Testing Must Predict a Prospective

The use of non-job related tests that might adversely affect members of minority groups was a matter of concern even before the passage of Title VII of the 1964 Civil Rights Act (hereinafter "Title VII"). The concept was suggested in the 1964 opinion of an Illinois Fair Employment Practices Commission hearing officer in Myart v. Motorola, decided under the Illinois Fair Employment Practices Act Co.. The Myart decision broadly suggested that standardized tests on which minorities did not perform as well as whites were entirely prohibited. To obviate such an all encompassing prohibition Title VII provided that it did not bar the use of "...any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin."

The United States Supreme Court first addressed the issue of employment testing under Title VII in Griggs v Duke Power Co. Griggs involved the employer’s requirement that an applicant for employment or an employee who desired a transfer have either a high school diploma or achieve a certain score on a standardized intelligence test. The plaintiffs demonstrated that far fewer African Americans in the employer’s community had completed high school than whites and that African Americans did not score as well on the standardized test as whites. The Court found this practice to violate Title VII holding that :

The Court ruled that "...any tests used must measure the person for the job and not the person in the abstract."

In Griggs the Court recognized that the prohibited criteria were facially neutral and that they were not used with the intention of discriminating. Griggs marked the announcement of the "disparate impact" concept as inherent in Title VII. An employment practice that has a disparate adverse impact on members of protected minority groups is barred even if it is neutral on its face and is not used to purposefully discriminate unless it is shown to be justified by a business necessity. Translated into testing requirements and other employee selection criteria it means that they must be job related; they must predict performance.

The EEOC has promulgated Uniform Guidelines on Employee Selection Procedures (the "Guidelines") which may be found in the Code of Federal Regulations. Extensive records must be maintained to determine the effectiveness of tests and other employee selection procedures in predicting performance of persons both in and out of protected groups. The Guidelines require that a selection procedure that disparately disqualifies members of protected groups must be shown to be job related through validation studies. The Supreme Court gave deference to the Guidelines in Albemarle Paper Co. v. Moody. In Albemarle the Court emphasized the necessity for a test to be validated separately for each position for which it is to be used. A test that is validated to predict performance for jobs higher in the progression than the entry level position that the applicant is seeking is not valid unless promotion is assured within a relatively short time. Otherwise it must be separately validated to determine if it is job related for the initial position.

The Title VII requirement that selection criteria be job related and predict performance is not limited to written tests. It applies to any employee selection criteria that result in disparate impact. In Griggs the Court found that the employer’s alternative requirement of a high school diploma also had an impermissible disparate impact. Possession of a high school diploma was not shown to be a prerequisite for successful performance of the jobs in question. Additionally strength and size requirements may in some cases have a disparate impact on the basis of gender. Examples of permissible, job related criteria might include a typing test or a spelling test for a stenographer, a strength or agility test for jobs where there exist lifting requirements or the need for fast movement.

The Guidelines, as they relate to validation of employee selection procedures, are both extensive and complex. They are beyond the ability of all but a few employers to apply. They are well outside of the scope of this article. What employers should learn from Griggs and Albemarle is to use caution in selection procedures. Confer with counsel knowledgeable in the area before initiating the use of devices that test for qualities such as intelligence and aptitude. Before using skill, strength and agility tests carefully consider if they truly test the requirements of the jobs for which they are being used. Employers should consider having well thought out job descriptions in place. Another benefit of formulating job descriptions is that the Americans With Disabilities Act (the "ADA") gives weight to an employer’s job description in determining what are the essential functions of a job.

The gathering of sensitive information having no bearing on employability may also violate Title VII where that information relates exclusively to members of a protected group. This was the finding of the Federal Appellate Court for the Ninth Circuit in Bloodsaw v Lawrence Berkeley Laboratory. In Bloodsaw the employer required employees to undergo a mandatory preplacement examination in which blood samples they supplied were tested for sickle cell anemia and pregnancy. Employees were also offered the opportunity to take a voluntary periodic health examination in which they were tested for these conditions. The testing of the blood samples for sickle sell anemia and pregnancy was performed without the knowledge of the employees. The court found that testing for sickle cell anemia singled out black employees while the pregnancy test singled out females. The court ruled that this testing constituted discrimination in the terms and conditions of employment which is prohibited by Title VII. The court reasoned that the gathering of such sensitive information had an "adverse effect" on those from whom it was gathered and was thus a violation of Title VII.

The ADA also places restrictions on the use of selection procedures that might have a disparate impact in 29 U.S.C. §12112(b)(6) which prohibits employers from:

The ADA also requires administering tests in a manner that ensures that one with a disability is accurately tested. When an individual is tested

In some instances the ADA will require and employer to make special provisions such as providing additional time, special lighting, giving a written test orally or an oral test in writing, giving the test in Braille or providing a reader and insuring accessability to the location where the test is administered.

The enactment of the ADA in 1990 provided employers with a new set of practices to observe in their employment selection procedures. The ADA places restrictions on the gathering, use and maintaining of medical information. In passing the ADA Congress took note of the fact that "... some 43,000,000 American have one or more physical or mental disabilities, and this number is increasing as the population is growing older." Congress determined that "...the Nations proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self sufficiency for such individuals." Among the purposes of the ADA was "... to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities."

Title I of the ADA prohibits discrimination against "...a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, privileges, and conditions of employment in hiring as well as other terms, conditions and privileges of employment." A "qualified individual with a disability" is "...an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

One means by which the ADA achieves its purposes is by restricting medical examinations and inquiries. An employer is not permitted to "...conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." An employer may, however, "...make preemployment inquiries into the ability of an applicant to perform job-related functions." An employer is permitted to require a medical examination after a job has been offered to an applicant and before the commencement of the individual’s employment duties, but only if a physical examination is required of all new employees in the same category, whether or not they are disabled.

The offer of employment given to an applicant before requiring a medical examination must be a bona fide offer. It may not be conditioned on factors other than the employee’s meeting the physical requirements of the job. In Buchanan v. City of San Antonio the court held that an offer of a police officer position that was subject to additional considerations was not a bona fide offer. In that case the offer was conditioned on "...on successful completion of ‘the entire screening process’ which included physical and psychological examinations, a polygraph examination, a physical fitness test, an assessment board, and an extensive background examination."

The ADA also contains strict confidentiality requirements for employee medical information. It must be maintained in a separate file apart from the individuals other employment records. Disclosure of this information is limited to supervisors or managers who need the information to address limitations on the individual’s work restrictions or necessary accommodations. It may also be disclosed to first aid or safety personnel if the individual might require emergency treatment. In addition it may be disclosed to government personnel who are investigating the employer’s compliance with the ADA.

The ADA provides a separate set of restrictions on the obtaining of medical information from employees who are already working for the employer. Medical examinations and inquiries as to whether a current employee has a disability and the nature and severity of the disability may not be made "...unless such examination or inquiry is shown to be job related and consistent with business necessity." Employers should make note of the fact that the statute requires job relatedness and business necessity only for information about current employees. This restriction does not apply to post offer information sought before an employee starts to work.

An employer is permitted to offer voluntary medical examinations and medical histories that are part of a health program made available to employees in which the employer may also inquire about an employee’s ability "...to perform job related functions." Information obtained pursuant to a voluntary health program or about an individual’s ability to perform job related functions must also be kept in a separate file and dissemination is limited in the same manner as information obtained in a post offer examination.

The restrictions on requiring pre offer medical examinations raise the question of what is in fact considered a medical examination under the ADA. The EEOC has undertaken to answer this questions in its Title I:EEOC Guidance dated October 10, 1995 as follows:

• Is it administered by a health care professional or someone trained by a health care professional?
• Are the results interpreted by a health care professional?
• Is it designed to reveal an impairment; physical or mental?
• Is the employer trying to determine the applicant’s physical or mental health?
• Is in invasive (for example does it require the drawing of blood, urine or breath?
• Does it measure an applicant’s performance of a task, or does it measure the applicant’s physiological responses to performing the task?

• Is it normally given in a medical setting?
• Is medical equipment used?

The Guidance provides some examples of does and don’ts in obtaining pre offer information from applicants. For example it is permissible to require an applicant to lift and carry an object a given distance but it is not allowable to measure the person’s heart rate or blood pressure after the task is performed. The Guidance admonishes against psychological tests interpreted by a psychologist to determine the presence of a mental illness. Psychological examinations that are not medical are not prohibited by the ADA. An impermissible pre-offer medical test would be one that would reveal a person’s mental conditions such as excessive anxiety or depression. The Guidance, while prohibiting pre offer eye examinations by a ophthalmologist or an optometrist, permits a basic vision test to see if an individual can read or discern objects sufficiently to perform the job in question.

The Guidance gives counsel on eliciting other pre offer information. An employer may ask applicants if they can perform the job or the various functions of the job with or without accommodation. The employer may ask applicants to demonstrate or describe how they will perform job functions, but the employer may not ask in such a way as to elicit information from them as to whether they need an accommodation.

If an applicant is a wheel chair user or has some other disability that is obvious or known to the employer, the employer may ask what accommodation, if any, is necessary for the applicant to perform the job. An employer may also ask one to voluntarily self identify as disabled as part of an affirmative action plan if the employer intends to use the information for the benefit of disabled individuals.

The ADA does not prohibit preemployment drug tests. The statute specifically provides that one who is currently engaging in the illegal use of drugs is not a "qualified individual with a disability." Additionally "A test to determine the illegal use of drugs [is] not considered a medical examination." It follows that an applicant or employee may be asked if he or she is illegally using drugs currently. An employer may not ask questions about legal use of drugs, as that information might reveal information about a disability. However if an employee or applicant tests positive for drugs the employer may determine if it is the result of prescription medicine that the individual is taking legally. It is important for employers to be aware that the ADA does protect those who have successfully completed or who are currently participating in a drug rehabilitation program.

Alcoholism is a protected disability under the ADA. Therefore an applicant or an employee may not be asked questions to determine whether he or she is an alcoholic. However the ADA specifically allows employers to prohibit the use of alcohol and illegal drugs in the workplace and to require that employees not be under the influence of alcohol while at work. An employer may also hold an employee who is alcoholic or who engages in the illegal use of drugs to the same standards of conduct and performance as other employees even if the employee’s deficiencies are related to alcoholism or illegal drug use.

Several federal appellate court decisions have considered whether an employer’s violation of the limitations on requiring medical examinations and separate filing of medical information gives rise to a claim by one who is not a qualified individual with a disability. The Federal Appeals Court for the Eighth Circuit found that it did in Cossette v. Minnesota Power & Light. There, a supervisor disclosed the plaintiff’s lifting restrictions and suspected intellectual limitations to prospective co-workers. Her lifting restrictions were also disclosed to the U.S. Postal Service to which she had applied for a letter carrier position. Although the court found that the plaintiff was not a qualified individual with a disability she was permitted to maintain her action for lost wages due to the delay the disclosure caused her in obtaining the letter carrier position. The court did not allow her to proceed with her action for the disclosure to the co-workers. The harm she alleged, being treated in a condescending and patronizing manner by them, was not found to give rise to compensable damages.

The Federal Appellate Courts for the Ninth and Tenth Circuits have also approved suits for violation of the ADA restrictions on obtaining and retaining medical information. In Fredemburg v. Contra Costa County Department of Health Services the court allowed a current employee who was not a qualified individual with a disability to challenge her employer’s requirement that she take a fitness for duty examination before returning to work. She had been placed on administrative leave because of difficulties she was having with co-workers. The Federal Appellate Court for the Tenth Circuit permitted actions by plaintiffs who were not qualified individuals with a disability in Roe v. Cheyenne Mountain Conference Resort, Inc. and Griffen v. Steeltek, Inc. In Roe a current employee was permitted to maintain an action against her employer because its drug testing policy required disclosure of prescription drugs that she was taking. The court pointed out that the ADA requires inquiries of those who are already working for the employer to be "...job related and consistent with business necessity." In Griffen a non-disabled job applicant sued an employer because its employment application asked whether the applicant had received workers compensation or disability income payments and if there were jobs that the applicant could not do because of physical defects. The appellate court held that one who was not a qualified individual with a disability could sue for a violation of the ADA limitations on medical inquiries. It remanded the case to the trial court to determine wether the inquiries did in fact violate the ADA.

The Federal Appellate Court for the Fifth Circuit considered whether violations of medical information restrictions give rise to an ADA claim regardless of whether the plaintiff is disabled in Buchanan v. City of San Antonio and Armstrong v. Turner Industries, Inc. Both were suits by non-disabled individuals who applied for employment. While the court did not specifically express whether or not a non-disabled individual could sue for violations of the medical information restrictions it tied the issue to whether the individual could connect the violations to the cause of some specific damages. In both cases there was no showing of any damages to the plaintiffs.

The Federal Appellate Court for the Eleventh Circuit considered, but did not answer the question in Watson v. City of Miami Beach There a police officer took issue with being required to take a fitness for duty examination before returning to work after incidents in which he demonstrated volatility. The court found that the examination was job related and consistent with business necessity. It was therefore permitted by the ADA for current employees.

There are considerations apart from the ADA in the requiring and disclosing highly personal information including medical information. Many states recognize the invasion of privacy tort of "intrusion upon seclusion" as set forth in the Restatement (Second) of Torts, (the "Restatement") Section 652B, as follows:

Comment a. to this section of the Restatement points out that a violation of this right does not depend on any publication of the private information, but rather on a person’s reasonable interest in the solitude or seclusion of one’s private concerns. The Restatement also provides a right of action for invasion of privacy to one whose private life is exposed to unreasonable publicity where the publicized information is not a matter of legitimate public concern. Florida Courts have recognized the tort of invasion of privacy as have many other courts. In Roe v. Cheyenne Mountain Conference Resort, supra, the federal appellate court considered that the employer’s drug and alcohol policy might amount to intrusion into seclusion invasion of privacy. The court focused on the policy’s prescription drug disclosure provision, the random drug testing provision and the ban on the use of non-prescription drugs. It therefore ordered the case remanded to the Colorado state court system for a determination of this issue.

Government sector employers have additional curbs imposed on their right to obtain information by the Fourth Amendment to the United States Constitution which provides as follows.

In Bloodsaw v. Lawrence Berkeley Laboratory, supra, the defendant, which was operated jointly by both state and federal agencies, was found by the Federal Appellate Court for the Ninth Circuit to have violated a right to privacy of the plaintiffs conferred by the Fourth Amendment. The court found that the tests conducted on blood and urine samples for sickle cell anemia and pregnancy without the knowledge and consent of the employees were searches prohibited by the Fourth Amendment. The court reasoned that matters concerning a person’s health were highly personal and entitled to privacy. For similar reasons the tests were found to have violated the California State Constitution. While these constitutional restrictions apply to government actors, private employers should also be aware that their seeking information, particularly through invasive means such as blood tests and urine tests, can involve privacy interests.

An example of how an employer’s demand for personal information through a psychological test may create an actionable invasion of an individual’s privacy is found in Soroka v. Dayton Hudson Corp., 1 IER Cases 1491, (Cal App. 1^st Dist. 1991. The plaintiffs objected to the "Psyscreen" test that Dayton Hudson’s Target Stores division required of applicants for store security officer positions. The test, which purported to determine an individual’s emotional stability, asked

questions relating to such personal matters as religious beliefs and sexual orientation. Among the questions were inquiries about the person’s church attendance and whether the individual believed that there is only one true religion. Test takers were also asked if they were attracted by members of their own sex, whether they have ever been in trouble because of their sexual behavior and if they ever worried about sex matters.

The court found that this was an invasion of privacy. Since there was no showing that one’s religious beliefs or sexual orientation had any bearing on a security officer’s job performance, the employer did not have the compelling interest that would be required to justify obtaining the information. Soroka also held that the Psyscreen test violated the California civil rights law’s prohibition against religious discrimination. It ruled that an employer is barred from making inquiries that are not job related.

Obviously the case law instructs employers that in addition to restrictions on demanding personal information imposed by Title VII and the ADA the employer might be exposed to serious liability for invading an employee’s privacy by seeking information from employees and applicants that is not job related.

IV. Potential Legal Hazards In Employer Drug Testing of Employees

A. The Florida Drug-Free Workplace Statute

As mentioned above the ADA does not regard current use of drugs to be a disability nor does it consider drug tests to be medical examinations. The ADA takes a neutral stand on the legality of drug testing providing that "Nothing in this subchapter shall be construed to encourage, prohibit or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results." Florida law relating to drug testing is found in its drug free workplace statute which is part of the state’s workers compensation act. Florida policy favors drug and alcohol testing of employees by employers. Employers are not required to maintain a drug-free workplace, but they are given certain advantages if they do so.

The Department of Insurance gives employers who implement drug-free workplace programs special consideration in setting their workers’ compensation insurance rating. The Florida drug-free workplace statute permits an employer who adheres to its requirements to require an "...employee to submit to a test for the presence of drugs or alcohol and, if a drug or alcohol is found to be present in the employee’s system at a level prescribed by rule, the employee may be terminated and forfeits his or her eligibility for medical and indemnity benefits." Workers’ compensation is not payable if an on the job injury is "...occasioned primarily by intoxication of the employee; by the influence of any drugs, barbiturates, or any other stimulants not prescribed by a physician..." The Florida drug free workplace statute bars employees from recovering benefits for on the job injuries caused primarily by the individual’s illegal use of drugs. An employer that maintains a drug-free work place program under the statute is required to notify employees that they are forbidden from reporting to work or being at work with drugs or alcohol in their bodies.

An injured employee of a drug-free work place who refuses to submit to a drug or alcohol test may lose the right to workers compensation benefits. The Florida Unemployment Compensation Act disqualifies one who is discharged for misconduct consisting of drug use where it is confirmed by a positive test. An employer who has obtained a beneficial insurance rating from the Department of Insurance by maintaining a drug free workplace program that conforms to the Workers Compensation Act requirements is given an advantage in unemployment compensation proceedings. An employer with the required rating is entitled to admit in evidence in an unemployment compensation hearing, drug test results from a drug testing laboratory that is licensed and approved as provided by statute. The test results and the chain of custody documentation provided to the employer will be self authenticating, admissible and will provide a rebutable presumption as to their validity.

Where an injured worker whose employer maintains a drug-free work place program fails a drug or alcohol test it is presumed that the injury was caused primarily by intoxication or drug use. Where an employer does not maintain a drug-free workplace program the presumption may be rebutted by clear an convincing evidence that intoxication or drug use did not contribute to the injury. There is also a rebutable presumption that an injury was caused by drug use if the employee refuses to take a drug test. Employers should not count too heavily on a positive drug test disqualifying an employee from workers compensation benefits. The Florida Supreme Court has held that this conclusive presumption in the statute is unconstitutional.

The statute spells out detailed requirements to which an employer must adhere if it elects to maintain a drug-free workplace program. An employer is required to give employees and applicants a written policy statement stating the types of drug testing the employee may be required to undergo. This may include reasonable suspicion drug testing or random drug testing. The written statement must notify the employee of the existence of the statute and of the consequences of refusing to submit to a drug test. The policy must contain a confidentiality statement, names and addresses of local employee assistance programs and drug rehabilitation programs, as well as a statement that the employee who tests positive has five days to contest the result or to explain it to the medical review officer. (A medical review officer is a licensed physician under contract with an employer who is knowledgeable in matters relating to substance abuse and testing who verifies positive test results and is able to interpret those results.) Before commencing drug testing the employer must give a 60 day written notice that it is initiating a drug testing program. The employer must also post its drug testing policy and give notice of that policy on all announcements of vacancies in positions for which the drug testing is required. For convenient reference the section of the statute detailing the requirements of the statement to employees and applicants is set out in Appendix A hereto.

The drug-free workplace law requires employers who elect to maintain a drug-free workplace to conduct the following types of drug tests:

1. Testing of job applicants.

2. Reasonable-suspicion drug testing.

4. Follow up drug testing at least once a year for two year for employees who have entered

a drug treatment program other than voluntarily.

The statute specifies that the above enumeration does not prohibit a private (i.e. a non governmental) employer from other lawful testing including random testing. Employers who do not maintain a drug-free workplace may require an employee who is injured on the job to undergo drug and alcohol testing if the employer has reason to believe that the injury was primarily caused by the individual’s intoxication or drug use. Samples must be obtained with "...due regard to the privacy of the individual, and in a manner reasonably calculated to prevent substitution or contamination of the sample." Specimens must be appropriately labeled as well as safely stored and transported to prevent contamination or adulteration. Specimens may be taken by a physician, a physician assistant, a registered nurse, a licensed practical nurse, a nurse practitioner, a certified paramedic who is giving emergency treatment at the scene of an accident or one who is a qualified employee of a licensed or certified laboratory. Enough specimen must be taken to allow for two drug tests.

The drug-free workplace law contains numerous built in protections for employees. If testing is conducted based on reasonable suspicion the employer must make written notation of the circumstances giving rise to the suspicion. Where the test is positive the specimen must be maintained for 210 days. The employee or applicant must be notified of positive test results with five working days of their receipt. At the same time the employee or applicant must be notified of any action the employer is taking based on the test results. The employee must also be notified of available options such as the right to explain and to contest the results. A copy of the test results must be supplied to the employee on request.

Before using a positive test result to discharge or otherwise discipline an employee the test must be "...verified by a confirmation test and by a medical review officer." The statute encourages employees to seek assistance for drug problems. No adverse action may be taken against the employee solely on the basis that the individual has voluntarily sought treatment while working for that employer unless the employee has "...previously tested positive for drug use, entered an employee assistance program or entered a drug rehabilitation program." Where the employer pays for the assistance or rehabilitation program it may select the program in which the employee participates unless a collective bargaining agreement covering the employee which provides otherwise is in force.

One who tests positive is not to be considered handicapped under handicap or disability discrimination laws. The act regards adverse employment action taken with respect to an employee in compliance with the drug-free work place law to be for good cause.

B. The Federal Drug-Free Workplace Act

While Florida law does not require employers in the private sector to maintain a drug free work place, those who receive federal grants must provide a drug free workplace in compliance with the federal drug-free workplace statute. A government contractor or an entity receiving federal assistance risks losing its government contract or assistance by failing to comply. The federal statute has many of the same requirements as the Florida law. It requires notification of employees of the prohibitions against controlled substances in the workplace and the possible consequences of violating the prohibitions. Covered entities must establish a drug free awareness program advising employees of the dangers of drugs as well as available rehabilitation and counseling programs. Covered entities are also required to take personnel action against those who violate the policy or require them to participate in a rehabilitation program.

The Fourth Amendment proscription against unreasonable searches and seizures requires a government agency, or one acting on the authority of a government body, who wishes to require certain information about an individual, to have justification for doing so. The subject was dealt with by the Supreme Court in Skinner v. Railway Labor Executives. In Skinner drug and alcohol testing rules issued under the authority of the Secretary of Transportation as authorized by the Federal Railway Safety Act of 1970 were challenged by railroad employees’ representatives. They claimed that the testing violated the Fourth Amendment. The regulations prohibit railroad employees from possessing or being under the influence of controlled substances while on duty. Testing of employees through blood and alcohol is required after a major train accident or one that involves the fatality of an on duty railroad employee. Breath and urine test are allowed if a supervisor has a reasonable suspicion that an employees’s actions contributed to an accident or where an employee appears to be under the influence of alcohol.

The Skinner Court found the tests to be searches and seizures due to their encroachment on the privacy interests of those who are subjected to the tests. The Court held that although the railroads are private entities, the tests are required by federal law. Since the tests are searches and seizures performed under government mandate the Fourth Amendment restrictions apply. The Court observed that the Fourth amendment prohibits only "unreasonable" searches and seizures. Where there are "special needs" searches and seizures without a warrant can be justified. Governmental interest in regulating the conduct of railroad employees for safety purposes constitutes such a special need. The Court also noted that testing those who were not under a particularized suspicion was permissible under the circumstances prescribed in the regulations. In summary because of the special needs connected with railroad safety the regulations did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures.

On the same day that the Supreme Court handed down its decision in Skinner it decided National Treasury Employees Union v. Von Raab in which it upheld the drug screening program of the United States Customs Service against contentions that it violated the Fourth Amendment. The program requires urine tests for drug screening before hiring or transferring employees into positions where (1) they are directly involved in drug interdiction; (2) they are required to carry firearms; or (3) they would handle classified material. The court found that there were special needs justifying the screening for the first two categories. Although the testing requirement entailed a "suspicionless search" the Court reasoned that the government’s compelling interest in ensuring the fitness and integrity of front line drug interdiction personnel constituted a special need. The urine test requirement was therefore found to be a reasonable search which was not prohibited by the Fourth Amendment.

Since Skinner and Treasury Employees the Supreme Court has revisited the issue of whether drug testing violates the Fourth Amendment in Chandler v. Miller. In Chandler the Court found the requirement that candidates for political office submit to and pass drug tests before being nominated or elected was a blanket, suspicionless search that was not reasonable.

Employers who are engaged in commerce, affect commerce or manufacture goods for commerce are strictly limited in their use of lie detector tests by the federal Employee Polygraph Protection Act of 1988 (the "EPPA") The EPPA restricts the use not only of polygraphs but of lie detectors generally, including a "...deceptograph, voice stress analyzer, psychological stress evaluator or any other similar device (whether mechanical or electrical) that is used, or the results of which are used for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual." Polygraphs are defined as instruments that record "...visually, permanently, and simultaneously, changes in cardiovascular, respiratory, and electro dermal patterns as minimum instrumentation standards." and which are used to diagnose "the honesty or dishonesty of an individual." Private employers are prohibited from requiring or even suggesting that an employee or applicant take a lie detector test. They may not discharge or otherwise discipline an employee or decline to hire an applicant who refuses to take a lie detector test. They are also prohibited to act adversely with respect to an employee or applicant on the basis of a lie detector test. The act also prohibits retaliation against one who has complained or taken any action or supported any action against the employer for or testified in any action relating to the act.

The broad definition of the term "lie detector" in the EPPA suggests caution in using auxiliary aids to conduct investigations. In Veazey v. Communications & Cable of Chicago, Inc. 194 F. 3d 850 ( 7^th Cir. 1999) the plaintiff alleged that the use of a tape recorder by the employer was prohibited by the EPPA. The plaintiff was suspected of leaving a threatening message on a coworker’s voice mail. He was discharged after he declined his employer’s demand that he provide a tape recording of the same message to allow comparison of the voice samples. The court pointed out that a tape recorder used by itself does not fulfill the EPPA definition of a lie detector. The decision admonished that use of a tape recorder in conjunction with a device that is employed to render an opinion as to honesty, such as a voice stress analyzer, would be prohibited by the EPPA .

In Pluskota v. Roadrunner Freight Systems, 524 N.W. 2d 904 (Wis. Apps. Dist 1 1994) the court considered a challenge to the use of a "Compu-Screen Risk Analysis Interview" under a section of the Wisconsin Fair Employment Act that is worded similarly to the EPPA. An employee was required to take the test in the investigation of a theft. The test consisted of 107 tape recorded multiple choice questions. Four seconds were allowed for each questions. The plaintiff was dismissed after taking the test. The court upheld the employer’s argument that the Compu-Screen, being a written test, was not a prohibited unfair honesty test, since it did not measure physiological changes in the subject as the test is being administered.

The Secretary of Labor (the "Secretary") is given responsibility for enforcement of the EPPA. The Secretary is required to issue rules and regulations, as well to make investigations to ensure compliance. The statute gives subpoena power to the Secretary. Covered employers are required to post notices of the provisions of the act which are prepared by the Secretary. The Secretary is empowered to bring suits to enjoin violations of the act. Individuals may also bring actions in which an employer can be required to hire, reinstate or promote them. They may also recover lost wages.

The EPPA contains a number of exemptions. It exempts the federal government as well as state and local governments along with political subdivisions of state and local governments. There is a limited exemption that permits employers to use lie detectors for ongoing investigations of losses or damage to the employer’s business due to theft or employee defalcation, industrial espionage or sabotage. Polygraph tests are permitted for certain prospective employees of security, armored car and security alarm services, the operations of which have a significant impact on the health or safety of a state or political subdivision of a state or the national security of the United States. This exemption applies only to those prospective employees actually engaged in protective operations. There is also a limited exemption allowing polygraph tests for certain prospective employees of employers engaged in the manufacture, distribution or dispensation of controlled substances.

There are rigid rules applicable to the use of the exemptions. Polygraph test results obtained under the exemptions may not be used to the detriment of an employee unless the test results are supported by additional evidence. The employee who is being tested under the ongoing investigation exemption must receive from the employer a written statement identifying the subject of the investigation, indicating that the employee had access to the property that is the subject of the investigation and stating the basis of the employer’s suspicion that the employee was involved in the incident under investigation.

Where employees are polygraph tested under the exemptions they are permitted to terminate the test at any time, they are not to be questioned in a degrading manner and they may not be questioned about matters relating to religious beliefs, political affiliations, racial matters or lawful union activities. Prior to the test the employee must receive reasonable written notice of the time and place of the test, the right to legal counsel during the test, the nature of the test and the instruments to be used and any monitoring or recording of the test that will take place. The examiner must have a license from the state in which the examination is taking place and must post a $50,000 bond. Appendix B is the notice that must be given before administering a test. Examiners are required to render their opinions in writing based only on the polygraph test chart. The report may not contain recommendations as to the individual’s employment. The examiner must retain the test information for at least three years.

NOTICE TO EMPLOYEES AND JOB APPLICANTS

(a) One time only, prior to testing, an employer shall give all employees and job applicants for employment a written policy statement which contains:

1. A general statement of the employer's policy on employee drug use, which must identify:

a. The types of drug testing an employee or job applicant may be required to submit to, including reasonable-suspicion drug testing or drug testing conducted on any other basis.

b. The actions the employer may take against an employee or job applicant on the basis of a positive confirmed drug test result.

2. A statement advising the employee or job applicant of the existence of this section.

3. A general statement concerning confidentiality.

4. Procedures for employees and job applicants to confidentially report to a medical review officer the use of prescription or nonprescription medications to a medical review officer both before and after being tested.

5. A list of the most common medications, by brand name or common name, as applicable, as well as by chemical name, which may alter or affect a drug test. A list of such medications as developed by the Agency for Health Care Administration shall be available to employers through the Division of Workers' Compensation of the Department of Labor and Employment Security.

6. The consequences of refusing to submit to a drug test.

7. A representative sampling of names, addresses, and telephone numbers of employee assistance programs and local drug rehabilitation programs.

8. A statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the medical review officer within 5 working days after receiving written notification of the test result; that if an employee's or job applicant's explanation or challenge is unsatisfactory to the medical review officer, the medical review officer shall report a positive test result back to the employer; and that a person may contest the drug test result pursuant to law or to rules adopted by the Agency for Health Care Administration.

9. A statement informing the employee or job applicant of his or her responsibility to notify the laboratory of any administrative or civil action brought pursuant to this section.

10. A list of all drugs for which the employer will test, described by brand name or common name, as applicable, as well as by chemical name.

11. A statement regarding any applicable collective bargaining agreement or contract and the right to appeal to the Public Employees Relations Commission or applicable court.

12. A statement notifying employees and job applicants of their right to consult with a medical review officer for technical information regarding prescription or nonprescription medication.

(b) An employer not having a drug-testing program shall ensure that at least 60 days elapse between a general one-time notice to all employees that a drug-testing program is being implemented and the beginning of actual drug testing. An employer having a drug-testing program in place prior to July 1, 1990, is not required to provide a 60-day notice period.

(c) An employer shall include notice of drug testing on vacancy announcements for positions for which drug testing is required. A notice of the employer's drug-testing policy must also be posted in an appropriate and conspicuous location on the employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the employer during regular business hours in the employer's personnel office or other suitable locations.

Notice to Examinee

    Section 8(b) of the Employee Polygraph Protection Act, and 
Department of Labor regulations (29 CFR 801.22, 801.23, 801.24, and 
801.25) require that you be given the following information before 
taking a polygraph examination:
    1. (a) The polygraph examination area [does] [does not] contain a 
two-way mirror, a camera, or other device through which you may be 
observed.
    (b) Another device, such as those used in conversation or recording, 
[will] [will not] be used during the examination.
    (c) Both you and the employer have the right, with the other's 
knowledge, to record electronically the entire examination.
    2. (a) You have the right to terminate the test at any time.
    (b) You have the right, and will be given the opportunity, to review 
all questions to be asked during the test.
    (c) You may not be asked questions in a manner which degrades, or 
needlessly intrudes.
    (d) You may not be asked any questions concerning: Religious beliefs 
or opinions; beliefs regarding racial matters; political beliefs or 
affiliations; matters relating to sexual preference or behavior; 
beliefs, affiliations, opinions, or lawful activities regarding unions 
or labor organizations.
    (e) The test may not be conducted if there is sufficient written 
evidence by a physician that you are suffering from a medical or 
psychological condition or undergoing treatment that might cause 
abnormal responses during the examination.
    (f) You have the right to consult with legal counsel or other 
representative before each phase of the test, although the legal counsel 
or other representative may be excluded from the room where the test is 
administered during the actual testing phase.
    3. (a) The test is not and cannot be required as a condition of 
employment.
    (b) The employer may not discharge, dismiss, discipline, deny 
employment or promotion, or otherwise discriminate against you based on 
the analysis of a polygraph test, or based on your refusal to take such 
a test without additional evidence which would support such action.
    (c)(1) In connection with an ongoing investigation, the additional 
evidence required for an employer to take adverse action against you, 
including termination, may be (A) evidence that you had access to the 
property that is the subject of the investigation, together with (B) the 
evidence supporting the employer's reasonable suspicion that you were 
involved in the incident or activity under investigation.
    (2) Any statement made by you before or during the test may serve as 
additional supporting evidence for an adverse employment action, as 
described in 3(b) above, and any admission of criminal conduct by you 
may be transmitted to an appropriate government law enforcement agency.
    4. (a) Information acquired from a polygraph test may be disclosed 
by the examiner or by the employer only:
    (1) To you or any other person specifically designated in writing by 
you to receive such information;
    (2) To the employer that requested the test;
    (3) To a court, governmental agency, arbitrator, or mediator that 
obtains a court order;
    (4) To a U.S. Department of Labor official when specifically 
designated in writing by you to receive such information.
    (b) Information acquired from a polygraph test may be disclosed by 
the employer to an appropriate governmental agency without a court order 
where, and only insofar as, the information disclosed is an admission of 
criminal conduct.
    5. If any of your rights or protections under the law are violated, 
you have the right to file a complaint with the Wage and Hour Division 
of the U.S. Department of Labor, or to take action in court against the 
employer. Employers who violate this law are liable to the affected 
examinee, who may recover such legal or equitable relief as may be 
appropriate, including, but not limited to, employment, reinstatement, 
and promotion, payment of lost wages and benefits, and reasonable costs, 
including attorney's fees. The Secretary of Labor may also bring action 
to restrain violations of the Act, or may assess civil money penalties 
against the employer.
    6. Your rights under the Act may not be waived, either voluntarily 
or involuntarily, by contract or otherwise, except as part of a written 
settlement to a pending action or

[[Page 773]]

complaint under the Act, and agreed to and signed by the parties.
    I acknowledge that I have received a copy of the above notice, and 
that it has been read to me.



 _______________________________________________________________________
(Date)

 _______________________________________________________________________
(Signature)

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