Page:United States Statutes at Large Volume 110 Part 6.djvu/591

 CONCURRENT RESOLUTIONS—APR. 16, 1996 110 STAT. 4413 upon the analysis of a polygraph test chart or the refusal to take a polygraph test, without additional supporting evidence. (b) "Additional supporting evidence", for purposes of section 8(a) of the EPPA, includes, but is not limited to, the following: (l)(i) Evidence indicating that the employee had access to the missing or damaged property that is the subject of an ongoing investigation; and (ii) Evidence leading to the employing office's reasonable suspicion that the employee was involved in the incident or activity under investigation; or (2) Admissions or statements made by an employee before, during or following a polygraph examination. (c) Analysis of a polygraph test chart or refusal to take a polygraph test may not serve as a basis for adverse employment action, even with additional supporting evidence, unless the employ- ing office observes all the requirements of sections 7(d) and 8(b) of the EPPA, as applied by the CAA and described in sections 1.12,1.22,1.23,1.24 and 1.25 of this part. SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CONTROLLED SUB- STANCE EXEMPTION. (a) Section 8(a)(2) of the EPPA provides that the controlled substance exemption in section 7(f) of the EPPA and section 1.13 of this part shall not apply if an employing office discharges, disciplines, denies employment or promotion, or otherwise discriminates in any manner against a current employee or prospective employee based solely on the analysis of a polygraph test chart or the refusal to take a polygraph test. (b) Analysis of a polygraph test chart or refusal to take a polygraph test may serve as one basis for adverse employment actions of the type described in paragraph (a) of this section: Provided, That the adverse action was also based on another bona fide reason, with supporting evidence therefor. For example, traditional factors such as prior employment experience, education, job performance, etc. may be used as a basis for emplo3ment decisions. Employment decisions based on admissions or statements made by an employee or prospective employee before, during or following a polygraph examination may, likewise, serve as a basis for such decisions. (c) Analysis of a polygraph test chart or the refusal to take a polygraph test may not serve as a basis for adverse employment action, even with another legitimate basis for such action, unless the employing office observes all the requirements of section 7(f) of the EPPA, as appropriate, and section 8(b) of the EPPA, as described in sections 1.13, 1.22, 1.23, 1.24 and 1.25 of this part. SEC. 1.22 RIGHTS OF EXAMINEE—GENERAL. (a) Pursuant to section 8(b) of the EPPA, the limited exemption in section 7(d) of the EPPA for ongoing investigations (described in sections 1.12 and 1.13 of this part) shall not apply unless all of the requirements set forth in this section and sections 1.23 through 1.25 of this part are met. (b) During all phases of the polygraph testing the person being examined has the following rights: (1) The examinee may terminate the test at any time. (2) The examinee may not be asked any questions in a degrading or unnecesseuily intrusive manner.

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