On-the-Job Privacy, Part Two

To pick the best applicant for the job, ensure satisfactory job performance, or ensure workplace, worker, or patient safety, employers sometimes request background checks, drug tests, medical screenings, and mandatory vaccinations. Here is some information on these practices, some of which people find controversial.

Background Checks

Employers may conduct background checks on potential employees to verify the accuracy of the information provided on job applications and résumés, and to prevent negligent hiring lawsuits. For certain jobs, background checks are required by state, provincial, or federal law. For example, criminal background checks are usually a requirement for anyone who works with children, or elderly or disabled people.

The following information, some of which is public record, may be included as part of a background check:

In most cases, an employer must get a job applicant or employee's permission before obtaining the following types of information:

In the United States, employers who hire a third party to conduct a background check must follow the Fair Credit Reporting Act (FCRA). Employers must obtain the job applicant's or employee's written authorization before conducting a background check. The employer must follow certain steps if they want to take adverse action (e.g., denying the applicant a job, rescinding a job offer, terminating an employee, or denying a promotion) as a result information uncovered through the background check. First, the employer must give the applicant or employee a "pre-adverse action disclosure," which includes a copy of the report from the background check, and an explanation of the applicant or employee's rights under the FCRA. Following the adverse action, the employer must give an "adverse action notice" which includes the contact information of the company that conducted the background check, and a notice that the applicant or employee has the right to dispute the accuracy or completeness of their report. However, employers may claim that they rejected an applicant based on reasons other than the background check, and in such cases the applicant would be unable to obtain a copy of their report. And employers who conduct the background check themselves are exempt from FCRA rules.

In Canada, federal employers and employees must follow the Personal Information Protection and Electronic Documents Act (PIPEDA). The provinces of Alberta and British Columbia both have a Personal Protection Act (PIPA), designed to "govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of individuals to protect their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances." Section 15 of Alberta's PIPA states that organizations may collect personal information about an employee or potential employee without their consent if the information is being collected for reasonable purposes and if only work-related information is collected. If the individual is already an employee of that organization, then the employer must give notification that personal information will be collected, and the purposes for which it will be collected. Some circumstances – such as when the information is publicly available, or when collecting the information is in the individual's interest, but their consent cannot be obtained in a timely way – also permit organizations to collect personal information without consent. Under British Columbia's PIPA – employee personal information may be collected without the individual's consent if it's reasonable for the purposes of "establishing, managing or terminating an employment relationship" or if the situation falls under certain scenarios. Under PIPA, individuals have the right to see the personal information that has been collected about them and to request corrections on information that is inaccurate or incomplete. Individuals also have the right to know why the organization is collecting personal information and the names of the individuals or organizations that collected the information.

Employers may also search social networking sites like Facebook and MySpace for information on prospective candidates. Therefore, before you start your job search, make sure to delete any information from your profile that you would not want a prospective employer to see.

Drug Tests

Critics of workplace drug testing argue that they can produce false positive results and that they invade the employee's privacy. Some drug tests may fail to distinguish between legal and illegal substances. For instance, Depronil, a prescription drug for Parkinson's disease, may lead to a positive result for amphetamine use, and anti-inflammatory drugs like Ibuprofen may lead to a positive result for marijuana. In some tests, even poppy seeds from baked goods can produce a positive result for opiates. To avoid the negative repercussions generated by positive drug tests due to legal substances, employees undergoing drug testing should inform the tester of all medications that they regularly take or have taken recently. Another concern cited is that drug tests do not directly measure on-the-job impairment. For jobs that require high precision or motor dexterity, computer-assisted performance tests, which measure the employee's hand-eye coordination and response times, would be a better way of determining employees' fitness for job tasks.

According to Addicts in the OR?, about 10 to 15% of healthcare professionals misuse drugs at some point in their careers – a rate that's similar to what's observed in the general population. However, impaired healthcare professionals can pose a much greater risk to the public than workers in most other professions. A position statement from the New York State Nurses Association (NYSNA) recommends that nurses should be tested only when there is objective evidence and/or reasonable suspicion that job performance has been impaired by alcohol or drug usage. In general, healthcare professionals who are combating a drug or alcohol addiction can keep their professional license and their job if they discontinue drug and/or alcohol use, participate in an addiction recovery program, and have their practice monitored by another healthcare professional for a set period of time.

According to information from the Job Accommodation Network, the Americans with Disabilities Act (ADA) protects employees from discrimination if they have stopped using illegal drugs and are enrolled in a drug treatment program, if they were addicted to illegal drugs in the past but have been successfully rehabilitated, or if they were mistakenly perceived to be drug addicts. However, ADA does not protect employees who are current users of illegal drugs or who casually used illegal drugs in the past, but did not become addicted.

From a legal perspective, it is more difficult for Canadian employers to order employee drug tests. Drug Testing in Canada: The Current and Future Arbitral Perspective explains that alcohol and drug dependence falls under the category of a handicap, and the Canadian Human Rights Act (CHRA) and provincial human rights legislation prohibit employment discrimination on the basis of a handicap. Employers can justify drug and/or alcohol testing if they can establish that testing is a bona fide occupational requirement, and that drug or alcohol problems are impairing job performance in the workplace.

Medical Information

Employers may require medical information such as sick leave taken or worker's compensation claims, for a variety of reasons, one of which is to make reasonable accommodation for an employee's special needs. If a medical condition is impairing an employee's work performance or is a threat to the employee's own safety and/or the safety of others, then the employer can request medical tests or documentation. In the US, employers must comply with the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Health Insurance Portability and Accountability Act (HIPAA) when collecting medical information. Any medical information collected by an employer must be kept separate from other personnel forms, and only disclosed to those who have a work-related need to know. In the pre-employment stage, employers can only ask medical questions after making a job offer and before work starts, and only after all other background checks have been completed. However, at any stage in the hiring process, employers are permitted to ask job applicants or their previous employers about the number of absences they had at their last job.

As genetic testing for disease susceptibility becomes more common, some people are concerned about the impact it may have on the workplace. In April 2007, the United States approved The Genetic Information Nondiscrimination Act (H.R. 493). This legislation prohibits employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions. The legislation also prohibits health insurers from denying coverage to healthy individuals, or charging them higher premiums based solely on a genetic predisposition to a specific disease.

In Canada, Alberta and British Columbia's PIPAs permit collecting personal information if it is "necessary for the medical treatment of the individual and the individual is unable to give consent." Employers can also authorize the "disclosure of personal information relating to the mental or physical health of individuals to medical or other experts … information [that] could reasonably be expected to result in grave and immediate harm to the safety of or the mental or physical health of those individuals."

Vaccinations

Some healthcare facilities require new employees to provide proof of vaccination for common transmittable diseases (e.g., varicella, rubella) or to receive new vaccinations if their shots are out of date.

Mandatory flu vaccines for healthcare workers is currently a contentious issue. A 2005 article reports that the Society for Healthcare Epidemiology of America (SHEA) recommended vaccinating all healthcare workers unless they have a contraindication or refuse, while the American College of Occupational and Environmental Medicine (ACOEM) argued that mandatory flu shots were unnecessary.

In Canada, the province of Ontario made flu shots mandatory for the province's 5,000 paramedics in May 2000. Following the decision, 50 paramedics were suspended for refusing to comply with the legislation, although all but one were later reinstated. The union which represents Ontario paramedics began a court challenge arguing that the mandatory vaccinations violated workers' rights under the Charter of Rights and Freedoms, and a labor board ruled that a forced flu shot infringes on an employee's privacy rights, and that without the consent of the worker, would be an assault of the person. In October 2002, the Ontario government repealed its decision, so that flu shots were encouraged but not mandatory. The union that represents paramedics said that they would actively promote annual flu shots, and expected a participation rate of 96%.

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Workplaces should always strive to be fair and respectful when collecting information about employees or potential employees. Any information collected should be work-related, and employees should know why the information is being collected and how it will be used, and have the opportunity to correct any errors or omissions. Employees are more likely to be willing participants if they can see how such practices benefit their workplace, and have a say in how they are carried out.

Also see our earlier article: On-the-Job Privacy, Part One.

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