All employers can request almost limitless medical information from employees, but employers cannot legally obtain this information without express consent from prospective or current employees. Under the Americans with Disabilities Act, employers can only request a medical exam from potential employees after offering them a job contingent on the results of this medical exam. In the end, however, medical professionals must make the statement to employers stating fit to work, able to work with restrictions, or not fit to work.
Industry estimates state that nearly seventy percent of American workplaces regularly test employees for drugs and alcohol, per some of the laws mentioned in the Drug-Free Workplace Act. The laws concerning drug and alcohol screening fall under two distinct categories of potential employees and existing employees. Again, state and local laws may provide a more comprehensive body of law, statute, and precedents regarding the entire drug testing process, including the means of testing, the definition of a positive result, and the availability of workers to contest positive results.
If you are a job applicant, employers may request drug testing as the final phase before accepting you as an employee. In essence, if you pass the drug test, you have the job. These tests must be uniform for all employees and performed in a state-certified drug-testing laboratory.
Existing employees of a private company cannot be drug tested without due cause. As per criminal law, there must be probable cause for employers to suspect employee drug use before administering drug testing. Otherwise, these tests can be viewed as a violation of privacy, and employers may be held liable in a lawsuit. Some jobs, such as those in the transit or airline industry, require drug testing as a safety practice, but all employees consent to the testing as per their original employment agreement. Contesting positive drug test results is possible, but generally must be done at an employee's expense. Again, workplace laws regarding drug testing widely vary from state to state and even between different municipalities.
Employer use of polygraph testing was virtually outlawed for any private company engaging in interstate commerce per the terms of the Employee Polygraph Protection Act. The only private sector employees that may face a polygraph exam administered by their employer are those suspected of theft or other crimes, and suspects must be given forty-eight hours notice before the test. Additionally, wide lists of questions are banned from being included in these tests. If an employer is found in violation of the Employee Polygraph Protection Act, they may be subject to large fines and other damage awards to employees per the judgment of the Department of Labor.
The federal Americans with Disabilities Act prohibits employers from testing prospective employees for HIV or AIDS. Local, state, and federal laws regarding HIV testing on applicants in the final phase of the hiring process, however, vary widely and consulting with a local expert on these laws would be the most definitive course of actions for individuals looking to protect their workplace rights.
Various states offer protections for workers from genetic discrimination by their employers and insurance companies. At the federal level, the Genetic Information Nondiscrimination Act of 2008 prohibits insurance companies from requiring genetic testing before offering coverage, and in addition, the insurance providers cannot adjust premiums, deny benefits, or otherwise discriminate against workers or individuals based on genetic information. The EEOC is tasked with enforcing the provisions and protections of the Act.
No federal laws curtail employer monitoring within the vague grounds of normal business purposes. Otherwise, many state laws seek to fill the void by enforcing powerful statutes and laws to protect employee surveillance.