Pre-employment testing guidelines are a legal minefield

Abstract

The Americans With Disabilities Act (ADA) has changed the employment landscape significantly over the seven years since its passage.

The Americans With Disabilities Act (ADA) has changed the employment landscape significantly over the seven years since its passage.

Pre-employment testing is one part of the landscape that has also been affected by this legislation.

Under the ADA, employers who require pre-employment testing must use tests that are job-related and measure the skills/abilities required for the job.

Employers also must provide testing in an accessible location; and provide an accommodation that makes the testing format accessible or to provide an alternate format if an accommodation is not available.

The employer should inform applicants prior to administration of the test that accommodations will be made available upon request.

For example, an employer may have to substitute a written test for an oral test for persons with impaired speaking or hearing skills; administer tests in large print or Braille, or by reader, or on a computer for individuals with visual or other reading disabilities; allow individuals to record test answers by tape recorder, provide extra time, simplify language on the test.

If the test cannot be given in an alternate format, the employer may have to evaluate the skill or ability through another means, such as an interview, evaluating the applicant's education and work experience.

Medical examinations and tests are strictly prohibited by the ADA until after a bona fide job offer has been made and accepted.

Such tests must be required of all job applicants for similar positions. The results of the tests can be used only to determine if the individual has the physical or mental qualifications necessary to perform the task; to determine if a reasonable accommodation is necessary and the type of the accommodation; to determine if the person can perform a job without causing a direct threat to health and safety of the applicant and others; or to comply with existing medical requirements of the state or federal government.

The results of the examination must remain confidential and disclosed to only those with a need to know.

An employer that revokes a job offer as a result of a medical examination must show that the person could not perform the essential functions of the job; and that there is no reasonable accommodation that will enable the individual to perform the essential functions of the job.

Personality/psychological tests and drug/alcohol tests raise additional issues. Depending on the purpose of the test, a personality test may be considered a medical examination limiting its usage and when it can be given during the recruitment process.

Some psychological tests are intended specifically to identify psychological or emotional problems that may constitute a disability under the ADA.

Reports of the test results may include an evaluation of the candidate's mental or emotional character, a specific emotional weakness or even characterize an individual as having a "personality problem."

Some evaluations may even go as far as discussing a specific disorder such as depression.

To avoid ADA issues, the employer should only request a report that addresses the employer's concern, i.e., honesty, integrity -- without detailing whether the person has any emotional or psychological problem.

Should the employer desire information on a person's mental or emotional problems, then the test will be considered a medical examination and must be treated as such.

Drug testing has been excluded specifically from the definition of a medical exam. However, alcohol testing has not been excluded. This means employers may give pre-employment drug tests, but may not test for alcohol until a bona fide job offer is made.

To avoid problems, most employers conduct the drug/alcohol testing together after a bona fide job offer is made along with the medical examination.

Employers do not violate the law by refusing to hire individuals who have failed a drug/alcohol test since current users of illegal drugs or users of alcohol are not considered to be protected as individuals with disabilities.

However, individuals who successfully have completed a supervised drug rehabilitation program or are participating in a such a program and are no longer using drugs are considered individuals with disabilities.

In addition, if an employer erroneously regards an individual as using drugs and the person is not, the person may claim disability status.

Thus, if the drug test results are erroneous and the employer does not hire the individual because of the test results, the individual may have a claim under ADA as individual who is regarded erroneously as a disabled individual.

It is advisable for employers to insure that all results are accurate by having the individual re-take the test before making a decision.

Finally, some drug screens uncover prescription drug usage indicative of a medical condition.

Clearly, an employer should not use that information to make an employment decision.

The testing landscape continues to broaden into nontraditional areas and become more sophisticated, but the basic legal principles remain the same -- nondiscrimination in requiring the tests and the formats of the tests, job-relatedness of the tests and privacy of the results.