• While the EPPA limits how employers may administer lie detector tests, there are exemptions that apply.
• Employee refusal to take a test may not automatically be used to perform an adverse action.

The Employee Polygraph Protection Act (EPPA) applies to employers engaged in or affecting commerce. The law does not apply to federal, state, and local governmental employers. In general, it prevents employers from using lie detector tests either for:

• Pre-employment screening
• During employment

The employer cannot discipline, discharge, or discriminate against employees for refusing to take a lie detector test or for exercising their rights under the Act. However, the Act contains several exemptions that do allow certain types of employers to give lie detector tests under certain circumstances.

Exemption applicable to government contractors

The federal government can administer lie detector tests to private-sector contractors and their employees under the Act’s National Defense and Security Exemption. The exemption allows the federal government, in the performance of any counterintelligence function, to give lie detector tests to contractors and their employees who work for the:

• Department of Defense
• Department of Energy (when the contract is in connection with atomic energy defense activities)
• Federal Bureau of Investigation

The federal government, in the performance of any intelligence or counterintelligence function, can give lie detector tests to contractors and their employees who work for the:

• National Security Agency;
• Defense Intelligence Agency;
• Central Intelligence Agency; or
• Any federal government department, agency, or program whose duties involve access to information:
  • Classified at the level of “top secret;” or
  • Designated as being within a special access program under section 4.2(a) of Executive Order 12356, or a successor Executive order.

Under the exemption, the law puts little restriction on how the federal government can use lie detector tests (on private-sector contractors) for the above national defense and security reasons. They may use any type of lie detector, such as:

• Deceptograph
• Voice stress analyzer
• Psychological stress evaluator
• Any other similar device

The government is not limited to using polygraphs, which simultaneously record changes in cardiovascular, respiratory, and electrodermal patterns.

These agencies may conduct their lie detector tests without having to meet the Act’s provisions for:

• Using the test as the basis for adverse employment action;
• The rights of the examinee;
• The qualifications of examiners; or
• The disclosure of results.

Exemption for private-sector security firms

Employers who provide security services can give polygraph tests to certain prospective employees under the Act’s Exemption for Security Service. The firm’s primary business activity must be providing certain services (such as armored cars, alarm systems, or security guards) that function to protect:

• Various public infrastructures
• Hazardous materials
• Currency
• Valuables
• Information

The polygraph tests may be given only to prospective employees who would protect these facilities, materials, operations, or assets. The results of a test, or the refusal to take one, may not be used as the sole basis upon which an adverse employment action is taken against a prospective employee, such as:

• Denial of employment
• Denial of promotion
• Other discrimination

Exemption for private-sector drug-related firms

The Act has similar exemptions for employers that manufacture, distribute, or dispense certain controlled substances under the Act’s Exemption for:

• Drug Security
• Drug Theft
• Drug Diversion Investigations

These employers may administer polygraph tests to prospective employees who would have direct access to the controlled substances. To test current employees:

• There must be an ongoing investigation of misconduct involving the controlled substances; and
• They must have had access directly related to the investigation.

The results of a test, or the refusal to take one, may not be used as the sole basis upon which an adverse employment action is taken against a prospective employee, such as:

• Discharge
• Disciplinary action
• Denial of employment
• Denial of promotion
• Other discrimination

Exemption for any private-sector employer

Any private employer may give polygraph tests if there is an ongoing investigation involving economic loss or injury to the employer’s business under the Act’s Limited Exemption for Ongoing Investigations. The exemption states that before employers may administer polygraph tests:

• They must have been the victim of theft or other wrongdoing;
• The employee must have had access to the property in question; and
• Employers must have reasonable suspicion that the employee was involved.

Employees may not be discharged, disciplined, denied employment or promotion, or otherwise discriminated against in any manner based on the analysis of a test or the refusal to take one without additional supporting evidence, such as:

• Their access to the property; and
• The reasonable suspicion that they were involved in the incident or activity under investigation.