Workplace Testing of Employees Under Privacy Law

Employers often use various types of tests to help determine which employees are performing better than others, as well as which employees may be engaging in misconduct on the job. These can consist of both physical and written tests. Employees have certain privacy rights that protect them against overly intrusive testing, but tests are generally acceptable as long as there is a reasonable, work-related basis for them. Whether a basis is reasonable depends on the specific facts of the situation. If it seems to be related to the duties of the job, however, it is probably legal, while it is probably not legal if it delves into details of an employee's private life that are unrelated to the job.

If an employee has a physical or mental disability, the Americans with Disabilities Act (ADA) and related laws prevent employers from using tests to exclude workers with disabilities, as long as they can perform their job duties with a reasonable accommodation. This is true even if the test is reasonable on its face.

Medical Testing

Examinations of an employee’s medical condition may be allowed if the employee appears to be physically or mentally unable to carry out their job duties. There must be objective evidence to support this type of exam. The doctor generally is only allowed to tell the employer whether the employee is able to work, rather than disclosing all of their medical findings. The results of a medical examination must be kept in the employee’s personnel file, which can be accessed only by people who have a need to know the information in it.

An employer also may ask for a medical exam to verify that an employee seeking leave under the Family and Medical Leave Act (FMLA) actually qualifies for that leave. Again, the employer is entitled only to a determination of whether the employee qualifies for FMLA leave, rather than a full report on the employee’s health.

Drug Testing

The laws on drug testing for employees vary by state, since there is no overarching federal law on the topic except for workers in certain limited industries. Drug testing is often found to be permissible if an employee has been involved in an accident in which drug use is suspected, or if their supervisor notices signs of apparent drug use. It also is often accepted for employees who work in jobs that involve the use of guns or dangerous instrumentalities that could cause serious injuries. If an employee is going through a rehabilitation program or has recently completed such a program, they also may expect drug testing.

Lie Detectors (Polygraphs)

Generally, the Employee Polygraph Protection Act protects employees throughout the country from being subjected to lie detector tests. These tests have been found to be scientifically unreliable, and most states ban them outright. There may be an exception if an employer reasonably suspects an employee of misconduct related to theft, although certain additional requirements must be met.

Psychological Testing

This type of testing also is believed to be scientifically dubious. The ability of written psychological testing to predict an employee’s future behavior often has been challenged. Employees who are asked to take a psychological test thus may be able to show that it is not justified by any business reason and excessively infringes on their privacy.

Last reviewed October 2024