prospective employee,

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.

Source

29 CFR § 801.13

Scoping language

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 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.