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Sunday, November 14, 2010
Pre-Employment Testing - Drug Test, Genetic, honesty Test
Pre-employment testing has become a widely accepted practice. Such testing is regulated by both federal and state employment laws. These laws strictly limit the type of testing that may be conducted, as well as when testing is allowed, how pre-employment testing may be conducted, and whether job offers can be rescinded based upon test results.
The test may only be used if it is “job-related and consistent with business necessity.” If there is no disparate impact on any particular protected group, a test generally may be used regardless of validity or job-relatedness.
The burden of proof necessary to demonstrate that a particular test predicts successful job performance varies by jurisdiction. No matter what standard is followed, however, employers will be required to demonstrate that they meet the applicable standard using validated, relevant studies and evidence. Validation studies must be conducted in a professionally acceptable manner, preferably by a professional who is familiar with the EEOC’s Uniform Guidelines and other applicable legal principles.
ADA recognizes that employers may need to conduct physical examinations to determine whether an applicant can perform certain jobs safely and effectively. Accordingly, an employer may condition a job offer on the satisfactory result of a post-offer physical examination. An employer may not refuse to hire a person who has been extended a conditional offer of employment based upon the results of a medical examination unless the reason is job-related and justified by business necessity, however. Moreover, all prospective employees must undergo the same examination, regardless of disability, except that the employer may limit examinations to appropriate categories of employees based on legitimate business reasons.
Pre-Employment Testing - Drug Tests
Many employers require job applicants to successfully pass pre-employment drug tests as a condition of hire. Private employers generally have wide latitude to conduct pre-employment drug testing, although a few states require that job applicants be extended a conditional offer of employment before being asked to submit to such a test.
ADA prohibits pre-employment medical examinations before a conditional offer of employment has been extended. A test to determine whether an applicant is illegally using drugs is specifically exempted from the definition of what constitutes a medical examination, however. In contrast, pre-employment alcohol testing is considered a medical examination, and thus can be conducted only after an employer has extended the applicant a conditional offer of employment.
Drug tests also implicate employee privacy interests. Indeed, many of the California cases construing the right to privacy in the workplace have involved drug testing. Accordingly, it is imperative that the intrusiveness of any testing procedure be minimized. Finally, employers must be careful to implement the same testing program for all applicants or applicants in a particular category, in order to avoid any implication of discrimination.
Pre-Employment Testing - Medical Examinations
ADA recognizes that employers may need to conduct physical examinations to determine whether an applicant can perform certain jobs safely and effectively. Accordingly, an employer may condition a job offer on the satisfactory result of a post-offer physical examination. An employer may not refuse to hire a person who has been extended a conditional offer of employment based upon the results of a medical examination unless the reason is job-related and justified by business necessity, however. Moreover, all prospective employees must undergo the same examination, regardless of disability, except that the employer may limit examinations to appropriate categories of employees based on legitimate business reasons.
Pre-Employment Testing - Genetic Tests
A relatively recent development in the area of applicant and employee testing is the use of genetic screening. Proponents of these tests contend that they help to prevent certain occupational diseases by identifying workers who are unusually susceptible. Opponents of such screening argue that denying employment on the basis of genetic factors may have a disproportionate impact on selected racial and
ethnic groups.
While genetic screening is clearly still in its infancy, the courts and state legislatures are beginning to set the boundaries for permissible genetic screening. Labor laws, privacy laws, health and safety laws, and discrimination laws may all pose problems for genetic screening.
The court found that a national research laboratory, run by the University of California, violated employees’ state and federal privacy rights, specifically the constitutionally protected privacy interest in avoiding disclosure of personal matters, when it tested workers for genetic disorders, venereal disease, and pregnancy.
Pre-Employment Testing - Polygraphs and Other Honesty Tests
It is important to note that the EPP only prohibits mechanical or electrical devices, not paper-and-pencil tests, chemical testing, or other non-mechanical or nonelectrical means that purport to measure an individual’s honesty. Chemical testing is specifically excluded from the definition of lie detector, so as to affirmatively permit the use of medical tests to determine the presence of drugs or alcohol in an individual’s bodily fluids.
The test may only be used if it is “job-related and consistent with business necessity.” If there is no disparate impact on any particular protected group, a test generally may be used regardless of validity or job-relatedness.
The burden of proof necessary to demonstrate that a particular test predicts successful job performance varies by jurisdiction. No matter what standard is followed, however, employers will be required to demonstrate that they meet the applicable standard using validated, relevant studies and evidence. Validation studies must be conducted in a professionally acceptable manner, preferably by a professional who is familiar with the EEOC’s Uniform Guidelines and other applicable legal principles.
ADA recognizes that employers may need to conduct physical examinations to determine whether an applicant can perform certain jobs safely and effectively. Accordingly, an employer may condition a job offer on the satisfactory result of a post-offer physical examination. An employer may not refuse to hire a person who has been extended a conditional offer of employment based upon the results of a medical examination unless the reason is job-related and justified by business necessity, however. Moreover, all prospective employees must undergo the same examination, regardless of disability, except that the employer may limit examinations to appropriate categories of employees based on legitimate business reasons.
Pre-Employment Testing - Drug Tests
Many employers require job applicants to successfully pass pre-employment drug tests as a condition of hire. Private employers generally have wide latitude to conduct pre-employment drug testing, although a few states require that job applicants be extended a conditional offer of employment before being asked to submit to such a test.
ADA prohibits pre-employment medical examinations before a conditional offer of employment has been extended. A test to determine whether an applicant is illegally using drugs is specifically exempted from the definition of what constitutes a medical examination, however. In contrast, pre-employment alcohol testing is considered a medical examination, and thus can be conducted only after an employer has extended the applicant a conditional offer of employment.
Drug tests also implicate employee privacy interests. Indeed, many of the California cases construing the right to privacy in the workplace have involved drug testing. Accordingly, it is imperative that the intrusiveness of any testing procedure be minimized. Finally, employers must be careful to implement the same testing program for all applicants or applicants in a particular category, in order to avoid any implication of discrimination.
Pre-Employment Testing - Medical Examinations
ADA recognizes that employers may need to conduct physical examinations to determine whether an applicant can perform certain jobs safely and effectively. Accordingly, an employer may condition a job offer on the satisfactory result of a post-offer physical examination. An employer may not refuse to hire a person who has been extended a conditional offer of employment based upon the results of a medical examination unless the reason is job-related and justified by business necessity, however. Moreover, all prospective employees must undergo the same examination, regardless of disability, except that the employer may limit examinations to appropriate categories of employees based on legitimate business reasons.
Pre-Employment Testing - Genetic Tests
A relatively recent development in the area of applicant and employee testing is the use of genetic screening. Proponents of these tests contend that they help to prevent certain occupational diseases by identifying workers who are unusually susceptible. Opponents of such screening argue that denying employment on the basis of genetic factors may have a disproportionate impact on selected racial and
ethnic groups.
While genetic screening is clearly still in its infancy, the courts and state legislatures are beginning to set the boundaries for permissible genetic screening. Labor laws, privacy laws, health and safety laws, and discrimination laws may all pose problems for genetic screening.
The court found that a national research laboratory, run by the University of California, violated employees’ state and federal privacy rights, specifically the constitutionally protected privacy interest in avoiding disclosure of personal matters, when it tested workers for genetic disorders, venereal disease, and pregnancy.
Pre-Employment Testing - Polygraphs and Other Honesty Tests
It is important to note that the EPP only prohibits mechanical or electrical devices, not paper-and-pencil tests, chemical testing, or other non-mechanical or nonelectrical means that purport to measure an individual’s honesty. Chemical testing is specifically excluded from the definition of lie detector, so as to affirmatively permit the use of medical tests to determine the presence of drugs or alcohol in an individual’s bodily fluids.
