Can you be fired for refusing to take a polygraph? Like so many things, the answer is more than a simple yes or no. There are many resources on-line that can help provide an answer, but consulting an attorney before taking action is the best option.
The Employee Polygraph Protection Act of 1988 (EPPA) established the basis for current Federal regulations governing the use of a polygraph. In general, private employers may not require a polygraph as a condition of employment. They may not discriminate against job applicants or employees for refusing to participate in a polygraph session. They may not take adverse job actions against an employee based upon the results of a polygraph test.
That said, there are a few exceptions. “Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers.” In addition, employees suspected of “involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer” may be polygraphed. And (obviously), a polygraph may be a requirement for some federal security clearances requiring access to Sensitive Compartment Information (SCI) or Special Access Programs (SAP).
The Polygraph Protection Act sets out the conditions of allowable testing, the requisite skills of the tester, a requirement that the tester be insured or bonded, and it limits the disclosure of the results of any test.
Polygraph Testing and Public Safety
In 2011, the AELE Monthly Law Journal laid out the basics for polygraph testing of public safety job applicants. The rules for public employees at the local, state and Federal level are different than those for private employers. The article notes several important facts.
The use of polygraphs is often regulated by state laws, and in some cases, even local laws. Polygraphing is controversial and may not be reliable. Even in a legal polygraph test, there may be some questions that the law (local, state or Federal) does not permit the tester to ask.
A FAQ from the American Polygraph Association explains the process in some depth. It spells out many of the legal issues and restrictions on testing. It also offers an explanation of reliability issues and how errors may occur.
At the Federal level, some agencies polygraph all their employees on a regular basis. Federal News Radio discussed how they are used at agencies such as the CIA, NSA and FBI as part of the applicant-screening process as well as during an employee’s tenure with the agency. Our piece from 2011, How to Prepare for a Security Clearance Polygraph Examination, provides a comprehensive overview for a prospective employee.
Can you refuse a polygraph? Look before you leap is a truism that applies to this situation. There is no one answer and legal advice before making the decision to refuse is necessary in most cases.