13.3 TESTING APPLICANTS AND EMPLOYEES
13.301 Medical Examinations and Inquiries.
A. In General. The Americans with Disabilities Act (ADA) 24 prohibits requiring a medical examination until a conditional offer of employment has been made. 25 Similarly, before the employer makes a job offer, the applicant may not be asked to respond to medical inquiries 26 or to provide information about workers' compensation claims. 27
B. Physical Examinations. The ADA prohibits requiring physical examinations on a selective basis. 28 Individuals suspected of having
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disabilities may not be targeted for examination: an examination may be required only if it is a requirement for all individuals seeking employment in the particular job category. 29
Virginia law provides that it is unlawful for an employer to require "any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any medical records required by the employer as a condition of employment." 30
C. HIV and AIDS Testing. Testing employees for HIV or AIDS is subject to the ADA requirement that the testing be job-related and a requirement for all individuals seeking the particular job. 31 Virginia also requires an employee's consent before an HIV test is administered. 32 Under Virginia law, health care workers, law enforcement officers, salaried or volunteer firefighters, paramedics, emergency medical technicians, and school board employees must submit to an HIV test if another person is exposed to the employee's blood or bodily fluids in a manner that may transmit HIV. 33 Virginia law also subjects private individuals to HIV testing if their bodily fluids come in contact with a health care worker, law enforcement officer, salaried or volunteer firefighter, paramedic, emergency medical technician, or school board employee in a manner that may transmit HIV. 34 A court order may be issued if the individual refuses to submit to testing. 35
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Under Virginia law, an employer is liable for making an unauthorized disclosure of an employee's HIV status. 36 The unauthorized disclosure of an employee's HIV status also gives rise to a cause of action under the Privacy Act of 1974 37 and the ADA.
D. Genetic Testing. The Genetic Information Nondiscrimination Act of 2008 (GINA) 38 prohibits discrimination in hiring and employment decisions based on an individual's genetic information. For example, a company cannot refuse to hire a woman because her mother had breast cancer. The law also prohibits, with limited exceptions, requesting, requiring, or purchasing genetic information and forbids the disclosure of such information.
Likewise, Virginia employers are prohibited from requiring, soliciting, or administering a genetic test as a condition of employment. 39 An employer may not discriminate on the basis of a genetic characteristic or the results of a genetic test in hiring, firing, or promoting its employees. 40 An employer that takes adverse action against an employee on that basis may be subject to punitive damages. 41
13.302 Drug Tests.
A. In General. Drug tests are not medical examinations under the ADA. 42 Many states have statutes regulating drug testing of employees and applicants.
B. Employer Liability. An employer's reliance on an unconfirmed, erroneous drug test report may result in a defamation action for falsely
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labeling the employee a drug user. In Houston Belt & Terminal Railway v. Wherry, 43 the court upheld an award of $150,000 in compensatory damages and $50,000 in punitive damages for defamation. The employer in this case had communicated the false information to a third party. In addition, an applicant may have a claim for intentional infliction of emotional distress if the testing is conducted in an unreasonable manner.
C. Liability of the Drug Testing Laboratory. The drug testing laboratory may not be liable to an affected applicant or employee for negligent testing. In Smithkline Beecham Corp. v. Doe, 44 an offer of employment to the plaintiff was withdrawn because she tested positive for opiates. She said it was because she had eaten poppy seed muffins the day before the test and that the laboratory should have informed her and the company that eating poppy seeds might cause a positive test result. The court held that the laboratory had no duty to warn a person being tested that eating poppy seeds could cause a positive test result. 45
D. Medical Marijuana. Thirty-three states and the District of Columbia have enacted laws that permit qualifying individuals to use marijuana for medical purposes without being subject to state criminal prosecution. 46 Twelve of those thirty-four jurisdictions—Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and the District of Columbia—have enacted laws permitting some level of the recreational use of marijuana. Virginia is not...
