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1 Testing, Testing, 1, 2, 3: What Employers Need to Know About Employment Testing and the ADA Elisabeth R. Blattner-Thompson William K. Kennedy II

2 Introduction 2

3 Introduction: Types of Tests There are many different types of tests that can be useful in evaluating applicants and employees, including: - Medical Examinations - Physical Fitness Tests - Psychological/Personality Tests - Drug Tests - Aptitude Tests - Physical Agility Tests - Skill/Task-Based Tests - Cognitive/Knowledge Tests 3

4 Introduction: Benefits of Testing Employers use employment tests for many reasons, including: - To efficiently screen large pools of applicants - To assess applicants and employees objectively and accurately - To ensure that applicants and employees are able to perform the essential functions of their positions - To comply with other legal requirements (e.g., safety sensitive positions) - To match applicants and employees with suitable positions - To address safety concerns - To save money and/or reduce potential legal liability 4

5 Introduction: Risks of Testing Employment tests also carry potential risks, such as: - Legal liability This webinar focuses on complying with the ADA, but employers should remain cognizant of legal obligations imposed by other federal laws as well as state and local laws - Over-investing time and financial resources in relation to benefit - Damaging morale of current employees - Discouraging applicants from joining the initial applicant pool - Limiting managerial discretion to make beneficial workforce decisions 5

6 Employment Testing Under the Americans with Disabilities Act 6

7 ADA Overview: Discrimination The Americans With Disabilities Act of 1990, as amended, is the primary federal civil rights statute restricting discrimination based on disability Title I of the ADA prohibits an employer from discriminating against a qualified individual on the basis of disability in regard to employment, specifically: - job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment 7

8 ADA Overview: Disability The ADA includes three definitions for disability : 1. A physical or mental impairment that substantially limits one or more major life activities (i.e. an actual disability) 2. A record of having such an impairment 3. Being regarded as having this type of impairment Note: Current illegal use of drugs and pregnancy do not qualify as disabilities under the ADA, but drug addiction and pregnancy-related complications, like gestational diabetes and preeclampsia, may be disabilities 8

9 ADA Overview: Employment Tests General ADA Rules on Employment Tests: Any employment test that screens out or tends to screen out an individual with a disability is unlawful unless the test, as used, is shown to be job-related for the position in question and consistent with business necessity Employers must select and administer tests in a manner that does not improperly disadvantage disabled individuals because of an impaired sensory, manual or speaking skill (unless the impaired skill is the skill intended to be tested) 9

10 ADA Overview: Employment Tests An employment test is job-related if: - The test must relate to the functions of a specific job, not a general class of jobs - The test may apply both to essential and marginal functions of that job An employment test is consistent with business necessity if: - The test and the essential functions of a position are linked - Accordingly, a test that excludes an individual with a disability because of the disability and does not relate to the essential functions of the position is not consistent with business necessity 10

11 ADA Overview: Reasonable Accommodation If an employment test that screens out individuals with disabilities is job-related and consistent with business necessity, the employer must still assess: Whether such individuals could pass the test with reasonable accommodations Whether, in the case of a medical examination, such individuals could perform the essential functions of the position (as opposed to the criteria of the test) with reasonable accommodation 11

12 Pre-Employment Testing Insert image 12

13 Pre-Employment Testing There are two stages at which pre-employment testing can occur: - Pre-offer - Post-offer In regard to pre-employment tests, the primary distinction between these two time periods is that the ADA only permits medical examinations after an offer of employment has been extended to an applicant 13

14 Pre-Employment Testing The EEOC defines medical examination as a procedure or test that seeks information about an individual s physical or mental impairments or health. According to the EEOC, relevant factors include: 1. Is the test administered by a health care professional? 2. Are test results interpreted by a health care professional? 3. Is the test designed to reveal an impairment or physical/mental health? 4. Is the employer trying to discover an impairment or physical/mental health? 5. Is the test invasive (for example, requiring drawing blood, urine or breath)? 6. Does it measure an applicant's performance of a task, or does it measure his/her physiological responses to performing the task? 7. Is the test normally given in a medical setting? 8. Is medical equipment used? 14

15 Pre-Offer: Drug Testing Drug testing of applicants may be conducted in the preoffer stage The ADA specifically states that tests for current illegal drug use are not medical examinations - HOWEVER, tests to determine whether and/or how much alcohol an applicant has consumed are medical examinations under the ADA While pre-offer drug testing is permitted, employers will often want to wait until the post offer stage due to: - Screening costs - Risk of inadvertent ADA violations with follow-up questions 15

16 Pre-Offer: Other Tests Other permissible pre-offer tests include: 1. Agility Tests and Physical Fitness Tests Monitoring applicants physiological responses to these tests may transform them into medical examinations (prohibited pre-offer) Employers may lawfully require applicants to provide medical certifications and execute liability waivers 2. Psychological Tests and Aptitude Tests Employers may use personality tests not suited for diagnosing mental disorders, such as tests measuring an applicant s tastes or preferences or whether the applicant is likely to lie Employers should avoid using any personality tests frequently used by mental health professionals to diagnose mental disorders as these are likely to be deemed medical examinations 16

17 Pre-Offer: Other Tests 3. Polygraph Tests BUT, the ADA prohibits disability-related inquiries during such tests 4. Cognitive Tests or Knowledge Tests 5. Vision Tests Eye or vision examinations by healthcare professionals are prohibited, but employers may test certain job-related abilities, like the ability to distinguish between objects or read signs 6. Demonstration of Job Tasks Employers may ask applicants to demonstrate how they would perform job-related functions with or without reasonable accommodation 17

18 Pre-Offer: Other Tests Remember: - General ADA rules regarding employment tests still apply to these non-medical tests - Tests that screen out individuals with disabilities must be job-related and consistent with business necessity 18

19 Reasonable Accommodation for the Test - Employers must administer tests in the most effective manner so that a test does not reflect an applicant s impaired sensory, manual, or speaking skills where such skills are not the factors the test is intended to measure - Employers may tell applicants about the hiring process and ask whether an applicant will need a reasonable accommodation for the hiring process For example, consider an individual with dyslexia: - Applying for a copyeditor position and being asked to proofread a document for typos - Applying for a retail manager position and being asked to take a written test on customer service skills 19

20 Once a conditional job offer has been made to an applicant... 20

21 Post-Offer: Medical Examinations Post-offer, an employer may ask disability-related questions and/or require medical examinations and job offers may be conditioned on the results If disability inquiries/medical examinations are required: - ALL entering employees in the same job category must be subject to the same type of disability inquiry/medical examination, and - Medical information obtained as a result of disability inquiries/medical examinations must be kept confidential 21

22 Post-Offer: Medical Examinations When is an offer real under the ADA? - if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer Offers may exceed current vacancies and still be real if: - That many offers are needed to actually fill vacancies or reasonably anticipated openings 22

23 Post-Offer: Medical Examinations In contrast to employment tests in the pre-offer stage, disability inquiries and medical examinations of applicants who have been extended conditional job offers are not required to be: - Job-related - Consistent with business necessity However, criteria that ultimately screen out an individual because of a disability must be job-related and consistent with business necessity 23

24 Post-Offer: Medical Examinations In addition, employers must determine whether individuals excluded by the criteria could perform the essential functions of the job with reasonable accommodation If the employee was screened out for safety reasons, the employer must demonstrate the employee poses a direct threat a significant risk of substantial harm to self or others that can t be adequately reduced through reasonable accommodation 24

25 Testing of Current Employees 25

26 Employment Tests for Employees Standard for Testing of Current Employees Medical Examinations: - After employment begins, an employer may only require medical examinations if they are job-related and consistent with business necessity This standard is met when an employer has a reasonable belief that: 1. An employee s ability to perform essential job functions will be impaired by a medical condition; or 2. An employee will pose a direct threat due a medical condition 26

27 FMLA: Fitness-for-Duty Certification For example, if an employee takes FMLA leave for a serious health condition, the employer may require fitnessfor-duty certification for job restoration upon the employee s return Fitness-for-duty certification must comply with the ADA, meaning inquiries must be: - Job-related - Consistent with business necessity 27

28 Employment Tests for Employees Employers may also lawfully obtain medical information about employees when: - An employee requests a reasonable accommodation and his/her disability is not obvious - Another federal law or regulation requires it - The employee voluntarily discloses such information to the employer for affirmative action purposes or as part of a wellness program 28

29 Conclusion Thank you for coming! 29

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