Employment Tests

Many employers seek more information about applicants than background checks, social media sites, and interviews disclose. The array of tests used to make hiring decisions and determine if someone is fit to continue as an employee is indeed wide. There are tests to determine illegal drug use, truth, intelligence and skill, physical fitness and more.

In the next few sections, let’s look at more information about various employment tests, including:

• Drug tests
• Medical examinations and limitations of their use
• Polygraphs and honesty tests
• Scored tests of ability

Let’s start with drug tests.

 

Drug Tests

Many employers rely on drug tests to detect use of illegal drugs. Some tests are required prior to hiring. Others are required as part of periodic medical exams, to verify that someone in rehab has not relapsed, at random times, after observations of behavior that create a reasonable suspicion of drug use, and after on-the-job accidents.

Random drug testing can be conducted without notice and absent suspicion for a specified percentage of the workforce. Previously, marijuana was the illegal drug of choice among users. Whether marijuana will remain an illegal drug under federal law is questionable. Many states have legalized marijuana with varied conditions.

With few exceptions, a refusal to take a drug test means no offer of employment. Exceptions for employees are based on working for the government, union membership, and state laws regulating drug tests, though no state prohibits all forms of drug testing. Some occupations require periodic or random drug tests. Post-accident testing is often a necessary part of an investigation. Random drug testing is often limited to safety sensitive jobs. Example: pilots may have to test, but it is an unlikely requirement for janitors.

Disparate treatment can be alleged if other employees with different protected class characteristics failed tests based on faulty processes and were treated more favorably. Similarly, requirements for random testing that are higher for members of a protected class can provide a basis for lawsuits, though success is unlikely as public policy favors the elimination of illegal drug use.

Declining a test is grounds for termination. Even if someone challenged the request based on allegations of disparate impact, the maxim is “work now, grieve later.” If the test were negative, the challenge could continue. If positive, the challenge would be hobbled by the fact of illegal activity.

Next, let’s look at medical examinations.

Medical Examinations

The ADA defines a medical exam as any “procedure or test that seeks information about an individual’s impairments or health.” (42 U.S.C.A. 12114(a) (2017)). The standard is so general that identifying what qualifies seems like guess work. When the application of ADA standards is literal, it is less so. For example, a session with a psychologist to treat a mental illness is a medical exam. A session where a psychologist proctors a session where the Myers Briggs personality assessment is taken is not.

As is often the case, not every factor is necessary to establish that an exam or test qualifies as medical under the ADA. Tests not considered medical in nature include:

• Strength and agility tests.
• Drug tests. Congress has excluded tests for the use of illegal drugs from coverage as medical exams.
• Polygraph exams or tests to determine honesty.
• Personality assessments.
• Vision tests devised to check the ability to read or detect objects.
• Demonstration of the ability to perform job tasks.

Discernment of what qualifies as a medical exam involves whether it is intended to assess health or impairments as contrasted with abilities or traits. There are circumstances that overlap. For example, someone with severe arthritis might not be able to do the pull-ups required to qualify for a job as a firefighter. A test that includes x-rays and an MRI to determine the extent of the condition would qualify as medical. A test to determine ability; how many pull-ups the applicant could complete, would not.

Next, let’s look at the limitations on the use of medical examinations such as these.

Limitations on the Use of Medical Examinations

The ADA specifies whether medical exams can be conducted, the type of exams that can be performed, and how results can be used:

• Pre conditional offer – Cannot be used.
• Post conditional offer – Can be used, without restriction and if it is voluntary, job-related and consistent with business necessity.
• Denial of employment is limited to situations where the applicant cannot perform the essential functions of a job, with or without reasonable accommodation, or is a “direct threat” to self or others.

Medical exams should be the last step in the hiring process. Tests should be uniform and given to all candidates considered for the same job category. Candidates who appear to be disabled cannot be singled out.

Current employees cannot be required to undergo a medical exam unless it is voluntary, job-related and consistent with business necessity. An apparent inability to perform a job may be a performance-based concern. When an employer has a reasonable belief that an inability to perform a job is due to medical conditions or is a direct threat to self or others, a fitness for duty exam can be job related and consistent with business necessity. A good summation of the requirement is if a reasonable person would question if an employee is capable of performing a job because of what appear to be medical limitations.

The requirements of certain occupations support job-related medical exams. Some are required by law. For example:

• Actors in the adult entertainment industry are required to undergo testing for sexually transmitted diseases (STDs).
• Some law enforcement personnel are required to undergo periodic psychological assessments.
• Licensed commercial pilots are required to have a medical check every year.
• Anyone holding an airline transport pilot’s license and all pilots 40+ are required to undergo medical tests twice a year.

Those are not fitness for duty exams based on an employer’s observations. They are requirements based on business necessity and the potential for danger to self or others.

Let’s look next at polygraphs as honesty tests.  

Polygraphs as Honesty Tests

Why retailers don’t want someone with sticky fingers to oversee their tills or self-interested accountants to keep their books requires no explanation. Honesty and trust are important factors for most jobs. Initial inquiries are directed at whether a candidate has been honest about presenting their credentials. Aside from that, employers rely on tests that purport to reveal whether a candidate should be trusted.

Most are familiar with polygraphs. A common source is television shows that feature law enforcement efforts to solve crimes. It seems the tests are considered reliable at that level as suspects are often cleared based on passing. As most know, they are inadmissible in court. Why? Because the test does not detect if someone is lying.

A polygraph test measures changes when a subject is questioned, including respiration, blood pressure and perspiration. Psychiatrists deride polygraphs as worthless because a sociopath lies without evidencing discernible reactions. Nonetheless, employers rely on them during investigations of thefts or serious wrongdoing. Once an often relied on pre-hire tool in the private sector, they are no longer in use for that purpose because of the Employee Polygraph Protection Act (EPPA).

The EPPA requires that submission to tests be voluntary, not be made a condition for continued employment, and are subject to many other procedures we will study in a subsequent lesson. EPPA provides limited exceptions to private sector use including jobs where controlled substances are produced or dispensed and security services involving nuclear plants or water supplies. Government agencies, including law enforcement and security agencies, are allowed to polygraph candidates and employees.

Scored Tests of Ability

When professional golfers compete at a PGA tournament, a cut-off score is determined after the second round: the top 70 finishers, including ties, comprise the field for the third and fourth rounds. That is an objective standard. Cut-off scores on tests that tend to disqualify certain protected classes might not be as objective as the PGA requirement. Outcomes should be examined to ensure that they meet the requirements of job relatedness and business necessity.

Legal responsibilities for accommodation of disabilities commence when someone is hired. Unless a candidate is visibly impaired, an employer is not responsible for providing an accommodation when tests are conducted. Otherwise, an obligation arises when a candidate requests an accommodation. Applicants should be provided with advance notice about testing requirements. Employers can require that requests for accommodation be documented. Accommodations can include additional time, interpreters, large print forms, breaks, quiet locations of interviews in lieu of testing.