Many employers have begun using physical and drug tests to screen employees to determine who can and cannot perform the job duties, and some employers are required by the federal government to regularly test their employees for drugs in accordance with the Drug-Free Workplace Act. Employers, employees, the legislature and the courts have grappled with whether such physical and drug tests are necessary or legal.
Employers may examine employees to make certain that the employees can physically and mentally perform the job duties:
- Before beginning work: The Americans with Disabilities Act prohibits an employer from making a job offer contingent on passing a medical exam. Insurers may also require employees to undergo physical examinations before health insurance coverage will begin.
- A continuing employee: Once an employee has begun working, an employer is usually limited in requesting medical examinations. If the employer observes some activity or behavior that may indicate that the employee is not mentally or physically able to perform the job, the employer may request a “fitness for duty” test.
- An employer’s access to the results: The Americans with Disabilities Act limits an employer’s ability to access every detail in the medical examination. Rather, the doctor conducting the examination may only report whether the employee is physically able to perform the job duties, with or without restrictions.
State laws may differ regarding drug tests. For instance, California drug test laws may contain provisions that are specific only to that state. Some state laws, and the Americans with Disabilities Act, place restrictions on when an employer may test an employee for drugs and what questions an employer may ask an employee regarding drug use. An employment attorney would best be able to help an employee or employer determine what questions or tests are appropriate under these laws.
- Job Applicant: Generally, employers may require job applicants to submit to drug tests.
- Continuing Employees: Generally, employers cannot require employees to submit to drug tests.
- High Risk Job: If the employer demonstrates that the job carries a high risk of injury, like a transportation job, the employer may require random drug tests.
- Employer Believes the Employee Is Intoxicated: An employer may also require a drug test if the employer reasonably believes that an employee is impaired while on the job.
Lie Detector Tests
Under the Federal Employee Polygraph Protection Act (29 U.S.C. § 2001), employers cannot require employees to take lie detector tests unless the employee has been accused of theft or embezzlement.
Invasion of Privacy
An employer may be responsible for wrongfully invading an employee’s right to privacy if the required test is not closely related to the job duties. An employer may also unlawfully invade an employee’s right to privacy if the required test asks extremely personal questions.
Do I Need an Experienced Physical and Drug Test Attorney?
Because the law is quite detailed, an employment attorney can assist an employer with developing medical and drug testing procedures that conform to federal and state law. An attorney can also help an employee who believes that they have been tested unlawfully. The legal process for lawsuits is often quite difficult, and can be even more trying if the lawsuit is against your current employer. A lawyer can assist you with this process and help protect your rights if you continue to work for the employer during the lawsuit.