NACE Journal, November 2017

“Preemployment testing” has a different connotation to different people. From an employer’s perspective, these words may mean protection, due diligence, and a way to hire the right person for the right job. Depending on who the potential employee is, these words may raise a variety of emotions, from concern and anxiety to indifference or excitement. Issues with preemployment testing range from when a test is appropriate to how to conduct a test to how an employer can and should use the results. Whether you are the tester or the tested does not change the fact that you need to know your legal rights and obligations.

Employers conduct preemployment testing for a variety of reasons, including, but not limited to:

• Protection against claims for negligent hiring;
• Compliance with legal requirements;
• Issues with workplace violence or discipline; or
• Ensuring that the individual has the physical capabilities to perform the essential functions of a job.

As such, many employers spend a great deal of time and money on preemployment screening techniques to make sure they are obtaining a quality employee. Regardless of the method used, employers and applicants should be aware of the laws that provide protections (to the applicant) and restrictions (on the employer).

Testing and the ADA

As an initial matter, the Americans With Disabilities Act (ADA) restricts the ability of employers to require job applicants to undergo medical examinations or answer questions about medical conditions. There are different restrictions that apply to employers before and after a conditional offer of employment is extended to an applicant.

To understand an employer’s obligations and an applicant’s rights under the ADA, one must first understand what exactly constitutes a “medical examination.” Courts and Equal Employment Opportunity Commission (EEOC) have stated a test or procedure is more likely to be a medical examination under the ADA if it:

• Is administered by a healthcare professional;
• Is interpreted by a healthcare professional;
• Is designed to reveal an impairment to physical or mental health;
• Is invasive;
• Measures physiological responses when performing a task;
• Is normally given in a medical setting; or
• Is performed using medical equipment.

With this in mind, medical examinations include, but are not limited to:

• Vision tests by an ophthalmologist or optometrist;
• Blood, urine, and breath analyses to check for alcohol or drug use;
• Blood, urine, saliva, and hair analyses to detect disease or genetic markers;
• Blood pressure screening and cholesterol tests;
• Range of motion tests measuring muscle strength and motor function;
• Pulmonary function tests measuring lung capacity; and
• Psychological tests attempting to identify a mental disorder or impairment.

In comparison, examples of procedures and tests not generally considered medical examinations under the ADA include:

• Physical agility or fitness tests that measure performance of physical tasks, as long as these tests do not measure physiological responses such as heart rate or blood pressure;
• Tests evaluating an employee’s ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;
• Typing or computer tests; and
• Psychological tests measuring personality traits such as honesty, preferences, and habits.

Prior to making a conditional job offer, an employer may not require an applicant to take a medical or physical examination or drug or alcohol test; answer questions related to medical conditions; or answer questions that are likely to elicit information about a disability (for example, “Were you ever on workers’ compensation?” or “Did you take a lot of sick days last year?” or “When is the last time you went to the doctor?”).

With regard to drug and alcohol tests, the ADA and the EEOC previously took the position that pre-offer alcohol tests were prohibited, but pre-offer drug tests were permissible. The rationale behind this position is that, under the ADA, current illegal drug users are not protected. As such, an employer is technically permitted to conduct a pre-offer drug test. Conversely, alcohol use is legal, and individuals who are “recovering” alcoholics are protected under the ADA. Accordingly, pre-offer alcohol tests were generally considered to be illegal.

Recently, however, courts have ruled that pre-offer drug tests that determine the use of both legal and illegal drugs violated the ADA. In EEOC v. Grane Healthcare Co. and Ebensburg Care Center, LLC, d/b/a Cambria Care Center, the United States District Court for the Western District of Pennsylvania determined that an employer violated the ADA by conducting a pre-offer drug test on applicants. In Grane, the EEOC alleged that the employer violated the ADA because the pre-offer drug test of an applicant’s urine specimen constituted a medical examination. This argument was predicated on the fact that the test provided the employer with medical information beyond just illegal drug use and, therefore, constituted an illegal pre-offer medical exam.

The court agreed with the EEOC and found that the employer was in violation of the ADA. The determination was based on the fact that the test was not limited to just testing for illegal drugs, but rather provided the employer with information on an applicant’s glucose level as well. Based on the foregoing, the drug test was a medical examination and was limited to being conducted “post-offer.” Accordingly, it is recommended that all drug and alcohol testing be done at the post-offer stage of the employment process as it may elicit medical information, intended or not.

Personality and Psychological Tests

The use of personality or psychological tests has confounded employers and applicants alike over the years. Employers use personality tests to determine whether an applicant has the particular personality traits required or desired for a position. Personality tests use standardized questionnaires to gain insight into the personality of an applicant, which, in turn, allows an employer to determine whether that applicant will fit into the culture of the organization.

An employer must be careful, however, when administering such “personality” tests. As indicated above, medical exams are permitted only post-offer. As a result, if a personality test is administered by a medical professional (i.e. a psychological test given by a healthcare professional), it may be deemed a medical exam and, therefore, prohibited by the ADA until after an offer of employment has been made. In addition, even tests that are not administered by a medical professional have come under scrutiny because such tests have been deemed to allow an employer to impermissibly determine whether an individual has a mental disorder. As a practical matter, a “personality” test may be deemed legal as long as it is designed to address job-related traits and abilities, is applied fairly (that is, all applying for the position receive the same test), is "reliable" (meaning that it consistently measures an individual's traits), and does not screen out a protected class of individuals.

Pre-Offer: Ascertaining the Applicant’s Ability to Perform Job Functions

Notwithstanding the foregoing, during the pre-offer stage, an employer is fully permitted to inquire about an applicant’s ability to perform various job functions, including both essential and marginal ones, as long as the questions are not likely to elicit information about a disability. For example, assuming the questions are related to job function and are asked of all applicants for the job, an employer is permitted to ask applicants if they can lift a certain amount of weight, if they have a driver’s license, and if they can perform certain essential functions of the job with or without reasonable accommodation.

Additionally, employers are permitted to require applicants to perform cognitive tests (or IQ tests) to measure intelligence; aptitude tests to measure an applicant’s ability to learn a new skill; and physical ability tests to measure strength, endurance, and muscular movement, again assuming these are related to job function and are required of all applicants for the job. Employers are further permitted to require applicants to perform aptitude tests to determine an individual’s ability to complete the job duties for a specific position (i.e. typing tests or lifting tests). Such tests, however, should not include medical components (i.e. placing a heart monitor on an individual while performing physical tasks). If an employer includes such medical components, the test will be considered a medical examination and will be prohibited during the pre-offer stage.

It should be noted that if an employer is provided with medical information unsolicited from an applicant during the hiring process, the employer should disregard the information and continue with the interview process. Similarly, applicants should avoid discussing any medical conditions or answering any medically related questions during the interview process, and should not volunteer such information unless they are seeking a reasonable accommodation.

The ADA requires employers to provide a “reasonable accommodation” to applicants during the application, interview, and preemployment process. Accordingly, if an applicant has a disability that inhibits his or her ability to fill out an application, perform in the interview, or complete any employment testing, this information should be disclosed to an employer and a reasonable accommodation should be requested (e.g., if an individual is hearing-impaired and needs a sign language interpreter, the employer may be required to provide one during the interview).

Employers and applicants should also be aware that the type of test required by an employer should be “job related,” consistent with business necessity, and required of all applicants. For example, a law firm should not impose a lifting test on attorney or paralegal applicants because lifting is not an essential function of the jobs.

Post-Offer Limitations

While the pre-offer restrictions are significant, there are also some limitations for post-offer examinations under the ADA. After a conditional job offer has been made to an applicant, an employer may make disability-related inquiries and require medical examinations or tests if the employer conducts the test for all entering employees in the same job category, the results are kept confidential, and the examinations are not used to discriminate against disabled individuals.

An employer may, however, determine that an applicant is “not qualified” to perform a job based upon the results of an examination. In this case, an employer may withdraw a job offer if a disability prevents the individual from performing the essential functions of the job with or without a reasonable accommodation. If an employer does, in fact, withdraw the job offer, the decision must be job related, consistent with business necessity, and implemented only after engaging in the interactive process with the applicant to determine if a reasonable accommodation can be made. 

Issues Beyond the ADA

In addition to the foregoing ADA-related issues, employers and applicants should be mindful of other legal issues presented by preemployment tests. The Civil Rights Act of 1964—more commonly referred to as Title VII—prohibits discrimination against applicants on the basis of certain protected criteria (e.g., race, gender, religion, national origin, and more). According to the EEOC, if an employer intends to use preemployment testing, the test must fairly measure the knowledge or skills required by the particular job or class of jobs, or afford the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs.

Before using a preemployment test, an employer is required to consider whether the test is truly necessary for evaluation of candidates and whether the test accurately measures the particular skill in question. A test also may not discriminate against a class of individuals. For example, courts have found that physical fitness tests that have an adverse impact on female applicants may be discriminatory unless an employer can show that the test was job related, it actually measures the skills for a job, and there were no other alternatives to measure an individual’s ability to perform job-related tasks.

Accordingly, before determining that a test is necessary, an employer must ensure that the test is valid, job related, and uniformly applied to all applicants, and determine how it will be used in the hiring process. Additionally, while employers must consider how, when, and why to use preemployment tests, applicants must also be mindful of how to handle the issues presented when a test is required during an application process.

In this regard, applicants should not automatically agree to engage in any preemployment testing. If an applicant has a disability that impacts his or her ability to perform the test, a reasonable accommodation should be requested. An employer is prohibited from discriminating against an applicant for requesting such an accommodation. Further, applicants should be mindful that they may refuse to engage in a pre-offer test that is in violation of the law (e.g., a pre-offer drug and alcohol test). Employers are, once again, prohibited from retaliating against an applicant for engaging in such protected activity.

In light of the foregoing, it is clear that while preemployment testing has a wide variety of uses for employers, it presents difficulties for both the tester and the tested. Given the legal complexities associated with preemployment testing, however, it is imperative that employers and applicants alike understand the rules governing the use of such tests. This understanding will hopefully enable an employer to effectively tailor its hiring process in a way that maximizes the likelihood that “good” employees will be hired and alleviate some of the stress associated with such tests for applicants.