(a) Section 7(f) provides an exemption from the Act's general
prohibition regarding the use of polygraph tests for employers
authorized to manufacture, distribute, or dispense a controlled
substance listed in schedule I, II, III, or IV of section 202 of the
Controlled Substances Act (21 U.S.C. 812). This exemption permits the
administration of polygraph tests, subject to the conditions set forth
in sections 8 and 10 of the Act and Secs. 801.21, 801.22, 801.23,
801.24, 801.25, 801.26, and 801.35 of this part, to:
(1) A prospective employee who would have direct access to the
manufacture, storage, distribution, or sale of any such controlled
substance; or
(2) A current employee if the following conditions are met:
(i) The test is administered in connection with an ongoing
investigation of criminal or other misconduct involving, or potentially
involving, loss or injury to the manufacture, distribution, or
dispensing of any such controlled substance by such employer; and
(ii) The employee had access to the person or property that is the
subject of the investigation.
(b)(1) The terms manufacture, distribute, distribution, dispense,
storage, and sale, for the purposes of this exemption, are construed
within the meaning of the Controlled Substances Act (21 U.S.C. 812 et
seq.), as administered by the Drug Enforcement Administration (DEA),
U.S. Department of Justice.
(2) The exemption in section 7(f) of the Act applies only to
employers who are authorized by DEA to manufacture, distribute, or
dispense a controlled substance. Section 202 of the Controlled
Substances Act (21 U.S.C. 812) requires every person who manufactures,
distributes, or dispenses any controlled substance to register with the
Attorney General (i.e., with DEA). Common or contract carriers and
warehouses whose possession of the controlled substance is in the usual
course of their
business or employment are not required to register. Since this
exemption is intended to apply only to employees and prospective
employees of persons or entities registered with DEA, and is not
intended to apply to truck drivers employed by persons or entities who
are not so registered, it has no application to employees of common or
contract carriers or public warehouses. Truck drivers and warehouse
employees of the persons or entities registered with DEA and authorized
to manufacture, distribute, or dispense controlled substances, are
within the scope of the exemption where they have direct access or
access to the controlled substances, as discussed below.
(c) In order for a polygraph examination to be performed, section
7(f) of the Act requires that a prospective employee have ``direct
access'' to the controlled substance(s) manufactured, dispensed, or
distributed by the employer. Where a current employee is to be tested as
a part of an ongoing investigation, section 7(f) requires that the
employee have ``access'' to the person or property that is the subject
of the investigation.
(1) A prospective employee would have ``direct access'' if the
position being applied for has responsibilities which include contact
with or which affect the disposition of a controlled substance,
including participation in the process of obtaining, dispensing, or
otherwise distributing a controlled substance. This includes contact or
direct involvement in the manufacture, storage, testing, distribution,
sale or dispensing of a controlled substance and may include, for
example, packaging, repackaging, ordering, licensing, shipping,
receiving, taking inventory, providing security, prescribing, and
handling of a controlled substance. A prospective employee would have
``direct access'' if the described job duties would give such person
access to the products in question, whether such employee would be in
physical proximity to controlled substances or engaged in activity which
would permit the employee to divert such substances to his or her
possession.
(2) A current employee would have ``access'' within the meaning of
section 7(f) if the employee had access to the specific person or
property which is the subject of the on-going investigation, as
discussed in Sec. 801.12(e) of this part. Thus, to test a current
employee, the employee need not have had ``direct'' access to the
controlled substance, but may have had only infrequent, random, or
opportunistic access. Such access would be sufficient to test the
employee if the employee could have caused, or could have aided or
abetted in causing, the loss of the specific property which is the
subject of the investigation. For example, a maintenance worker in a
drug warehouse, whose job duties include the cleaning of areas where the
controlled substances which are the subject of the investigation were
present, but whose job duties do not include the handling of controlled
substances, would be deemed to have ``access'', but normally not
``direct access'', to the controlled substances. On the other hand, a
drug warehouse truck loader, whose job duties include the handling of
outgoing shipment orders which contain controlled substances, would have
``direct access'' to such controlled substances. A pharmacy department
in a supermarket is another common situation which is useful in
illustrating the distinction between ``direct access'' and ``access''.
Store personnel receiving pharmaceutical orders, i.e., the pharmacist,
pharmacy intern, and other such employees working in the pharmacy
department, would ordinarily have ``direct access'' to controlled
substances. Other store personnel whose job duties and responsibilities
do not include the handling of controlled substances but who had
occasion to enter the pharmacy department where the controlled
substances which are the subject of the investigation were stored, such
as maintenance personnel or pharmacy cashiers, would have ``access''.
Certain other store personnel whose job duties do not permit or require
entrance into the pharmacy department for any reason, such as produce or
meat clerks, checkout cashiers, or baggers, would not ordinarily have
``access.'' However, any current employee, regardless of described job
duties, may be polygraphed if the employer's investigation of criminal
or other misconduct discloses that such employee in fact took action to
obtain
``access'' to the person or property that is the subject of the
investigation--e.g., by actually entering the drug storage area in
violation of company rules. In the case of ``direct access'', the
prospective employee's access to controlled substances would be as a
part of the manufacturing, dispensing or distribution process, while a
current employee's ``access'' to the controlled substances which are the
subject of the investigation need only be opportunistic.
(d) The term prospective employee, for the purposes of this section,
includes a current employee who presently holds a position which does
not entail direct access to controlled substances, and therefore is
outside the scope of the exemption's provisions for preemployment
polygraph testing, provided the employee has applied for and is being
considered for transfer or promotion to another position which entails
such direct access. For example, an office secretary may apply for
promotion to a position in the vault or cage areas of a drug warehouse,
where controlled substances are kept. In such a situation, the current
employee would be deemed a ``prospective employee'' for the purposes of
this exemption, and thus could be subject to preemployment polygraph
screening, prior to such a change in position. However, any adverse
action which is based in part on a polygraph test against a current
employee who is considered a ``prospective employee'' for purposes of
this section may be taken only with respect to the prospective position
and may not affect the employee's employment in the current position.
(e) Section 7(f) of the Act makes no specific reference to a
requirement that employers provide current employees with a written
statement prior to polygraph testing. Thus, employers to whom this
exemption is available are not required to furnish a written statement
such as that specified in section 7(d) of the Act and Sec. 801.12(a)(4)
of this part.
(f) For the section 7(f) exemption to apply, the polygraph testing
of current employees must be administered in connection with an ongoing
investigation of criminal or other misconduct involving, or potentially
involving, loss or injury to the manufacture, distribution, or
dispensing of any such controlled substance by such employer.
(1) Current employees may only be administered polygraph tests in
connection with an ongoing investigation of criminal or other
misconduct, relating to a specific incident or activity, or potential
incident or activity. Thus, an employer is precluded from using the
exemption in connection with continuing investigations or on a random
basis to determine if thefts are occurring. However, unlike the
exemption in section 7(d) of the Act for employers conducting ongoing
investigations of economic loss or injury, the section 7(f) exemption
includes ongoing investigations of misconduct involving potential drug
losses. Nor does the latter exemption include the requirement for
``reasonable suspicion'' contained in the section 7(d) exemption. Thus,
a drug store employer is permitted to polygraph all current employees
who have access to a controlled substance stolen from the inventory, or
where there is evidence that such a theft is planned. Polygraph testing
based on an inventory shortage of the drug during a particular
accounting period would not be permitted unless there is extrinsic
evidence of misconduct.
(2) In addition, the test must be administered in connection with
loss or injury, or potential loss or injury, to the manufacture,
distribution, or dispensing of a controlled substance.
(i) Retail drugstores and wholesale drug warehouses typically carry
inventory of so-called health and beauty aids, cosmetics, over-the-
counter drugs, and a variety of other similar products, in addition to
their product lines of controlled drugs. The noncontrolled products
usually constitute the majority of such firms' sales volumes. An
economic loss or injury related to such noncontrolled substances would
not constitute a basis of applicability of the section 7(f) exemption.
For example, an investigation into the theft of a gross of cosmetic
products could not be a basis for polygraph testing under section 7(f),
but the theft of a container of valium could be.
(ii) Polygraph testing, with respect to an ongoing investigation
concerning
products other than controlled substances might be initiated under
section 7(d) of the Act and Sec. 801.12 of this part. However, the
exemption in section 7(f) of the Act and this section is limited solely
to losses or injury associated with controlled substances.
(g) Polygraph tests administered pursuant to this exemption are
subject to the limitations set forth in sections 8 and 10 of the Act, as
discussed in Secs. 801.21, 801.22, 801.23, 801.24, 801.25, 801.26, and
801.35 of this part. As provided in these sections, the exemption will
apply only if certain requirements are met. Failure to satisfy any of
the specified requirements nullifies the statutory authority for
polygraph test administration and may subject the employer to the
assessment of civil money penalties and other remedial actions, as
provided for in section 6 of the Act (see subpart E, Sec. 801.40 of this
part). The administration of such tests is also subject to State or
local laws, or collective bargaining agreements, which may either
prohibit lie detector tests, or contain more restrictive provisions with
respect to polygraph testing.
[56 FR 9064, Mar. 4, 1991; 56 FR 14469, Apr. 10, 1991]
