I. Employee Testing

All forms of employee testing raise significant issues of potential violations of an employee's privacy rights. This includes honesty, psychological, and personality tests, genetic screening, substance abuse tests and polygraph examinations. This section will examine many of the problems involved and strategies that companies can use to act legally.

AIDS and Genetic Testing. Fear of AIDS is rampant in the work- place, but state legislatures and the courts are only beginning to define the rights of employees who have the disease. Before the enactment of the federal Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973 prohibited businesses receiving federal money from discriminating against people afflicted with contagious diseases. Thus, firing an HIV-positive hospital worker would violate Section 504 of the act. In addition, most states have enacted laws protecting handicapped or disabled workers' rights of privacy and from on-the-job discrimination as long as they can perform their duties.

At present the law is not well settled in this area. AIDS testing of employees is mandated in some localities for food handlers, processors and waiters and most states, government agencies and the military mandate AIDS testing in blood donations.

The enactment of the ADA has significantly protected AIDS sufferers' privacy rights, since many pre-employment and on-the-job medical investigation practices and procedures that were once considered legal are now prohibited. For example, intrusions into a person's medical background and history are now substantially reduced. Application forms can no longer solicit answers to questions about whether the applicant is an individual with a disability, has a medical condition, or has ever been hospitalized or treated for a mental or emotional problem. Questions such as how many days was the applicant absent from other jobs and whether the applicant is currently taking medication are illegal. Pre-employment medical examinations cannot be conducted and employers are required to establish policies for staff and health providers regarding the disclo- sure and use of employee medical information.

Employers should review company handbooks and draft statements protecting against the unnecessary dissemination of medical information, and institute policies requiring supervisors and health providers to consult with company lawyers before disclosing any medical information. Related problems that have emerged must be carefully addressed: for example, how can your company be sure that the results of any job-related medical tests will remain confidential so as to avoid charges of slander or libel and other invasions of privacy?

TIP: Due to the ADA and pertinent state laws, pre-hiring and on-the-job AIDS tests are probably not legal. Since each case must be scrutinized on a factual basis, speak to a knowledgeable labor lawyer before implementing such tests.

Even the issue of genetic testing is unsettled. Many major corporations are currently testing the relationship of inherited genetic traits to occupational disease to determine if there are certain predisposing risks to employees and job applicants. More and more companies are considering using such tests and the extent to which the ADA will curtail their use is now being studied by labor lawyers throughout the country.