September 26th, 2019
Frank L. Day, Jr., Jessica Asbridge, Mollie K. Wildmann
Ford & Harrison LLP
Steve Jobs, the former CEO and chairman of Apple, Inc., believed that his most important responsibility was hiring the best employees. Jobs understood that a company’s employees are its single greatest investment. Before a company invests in an expensive new piece of equipment, management will typically research the product, secure information from vendors, and test the product before making a final decision. Businesses should at least devote the same time and effort to hiring decisions, but federal and state laws make it unlawful for employers to use certain forms of testing when make hiring decisions. This chapter will discuss how employers can lawfully use pre-employment testing to identify the “right employee.”
Employers may wish to use pre-employment tests to screen applicants. It is important for any such business that uses pre-employment testing as part of the hiring process to ensure that any such test does not violate the Americans with Disabilities Act (ADA). Any such business should ensure that the qualification standards or selection criteria do not tend to screen out persons who qualify as disabled under the ADA unless the standard or criteria being measured is both job-related and consistent with business necessity.
According to the ADA, employers may not require pre-employment medical examinations until a conditional offer of employment has been extended to the applicant. The test would also violate the ADA unless the employer requires all applicants who fall within that same job category to complete the medical examination.
The ADA does not prohibit pre-employment drug testing. In fact, tests for illegal drug usage do not qualify as a medical examination under the ADA. Nevertheless, employers should ensure that they do not receive information about an applicant’s lawful use of prescription drugs. A number of states have recently legalized the use of marijuana. Employers that receive federal funding are still required to consider marijuana an illegal drug, but employers that operate in such states should consult with counsel. Furthermore, some state statutes prohibit or restrict the use of drug testing. Any business that intends on adopting a drug testing policy should consult with counsel to ensure that its policy does not violate any federal or state statutes or regulations.
An alcohol test would qualify as a medical examination under the ADA. It is noteworthy that alcoholism could qualify as a disability under the ADA and an employer is restricted as to when tests may be given. An employer should wait until after making an initial offer of employment before requiring an alcohol test, and the employer should ensure that it could justify the use of this test as job-related and consistent with business necessity.
At the pre-offer stage, employers may ask about an applicant’s ability to perform specific job-related functions and may ask an applicant to describe or demonstrate that he/she can perform essential job functions either with or without a reasonable accommodation. Pre-employment tests designed to measure an applicant’s ability to perform essential job duties are permissible under the ADA. Nonetheless, an employer would be required to accommodate disabled applicants during testing under certain circumstances.
A physical agility or fitness test, in which an applicant demonstrates the ability to perform job-related tasks, is not a medical examination, but the employer may be required to make a reasonable accommodation for the applicant. If the test tends to screen out applicants with a disability, the employer must show that the test is job-related for the position in question and consistent with business necessity.
The federal Genetic Information Nondiscrimination Act (GINA) applies to all employers covered by Title VII of the Civil Rights Act (Title VII) and prohibits discrimination by employers and insurers based on genetic information. The ADA does not specifically address the issue of genetic testing. Executive Order 13145 prohibits discrimination by federal agencies on the basis of protected genetic information. Many states now prohibit genetic testing. Accordingly, employers should be cautious and seek counsel before requesting this of employees.
Written tests may have a tendency to screen out persons who fall within a protected category, and the use of written tests could be unlawful. The Equal Employment Opportunity Commission (EEOC) set forth its position on the subject in a document entitled “Uniform Guidelines on Employee Selection Procedures.” The EEOC insists that any written test that has an adverse impact on persons within a protected category is unlawful unless it has been “validated” by psychologists or other qualified experts according to the complicated standards set forth in its guidelines. The validation process is expensive, and the courts that have addressed the issue have split. Some courts have followed the EEOC validation approach and others have criticized it.
Under the Employee Polygraph Protection Act of 1988 (EPPA), most types of employers are prohibited from directly or indirectly requiring, requesting, suggesting, or otherwise causing a job applicant to submit to polygraph testing. Federal, state, and local governments are exempt from this act. Other exemptions include entities that manufacture, distribute, or dispense controlled substances. Some states also place limits on polygraph testing. Employers should consult with counsel before adopting any polygraph testing policy to ensure compliance with both federal and state law.
|State||Limits to Polygraph Testing|
|Alabama||Testing prohibited for continued employment for public employees.|
|Alaska||Testing is prohibited except for police officers and applicants to become police officers.|
|California||Cannot require polygraph for applicants or employees as a condition of employment or continued employment and must provide a notice of rights.|
|Connecticut||Cannot require, except for non-civilian police department and Department of Corrections positions.|
|Delaware||Cannot require as a condition of employment or continued employment, except for background investigations for police officer applicants.|
|District of Columbia||Cannot require or use results in hiring or employment. Certain exceptions for specific government employees are provided.|
|Hawaii||State law in large part is similar to federal law. However, state law does not have an exception allowing polygraphs as part of ongoing investigation involving economic loss or injury to a business.|
|Idaho||Cannot require as conditions of employment or continued employment. Certain exceptions for specified government employees are provided.|
Polygraph testing is prohibited about the following matters unless directly related to employment:
|Iowa||Cannot require as a condition for employment for virtually any reason. Certain exceptions apply for specified government employees.|
|Maine||Cannot require for applicants or employees, except for employees of law enforcement agencies.|
|Maryland||Cannot require and must include a notice of the prohibition in bold type on employment applications. Exceptions are made for certain corrections and law enforcement applicants.|
|Massachusetts||Cannot require for applicants or employees and notice must be provided on application.|
|Michigan||Cannot require of applicants or employees, threaten to administer, or require applicants or employees to waive rights.|
|Minnesota||Cannot request or require any form of honesty test|
|Montana||Cannot require as condition of employment/continued employment|
Cannot require employee or applicant to take polygraph test. Cannot discharge employees for refusing to take polygraph. Can request that test be taken, but only if these conditions are met:
|Nevada||Similar to federal law, but provides fewer exceptions allowing testing for manufacturers or distributors of controlled substances; providers or designers of security systems and other security personnel; ongoing investigation.|
|New Hampshire||No laws.|
|New Jersey||Cannot request or require as condition of employment or continued employment, with certain specified exceptions for employers who deal with controlled, dangerous substances.|
|New Mexico||Only applicable law to police officers.|
|New York||Cannot require, request, suggest, or permit for applicant or employee, and cannot use test results.|
|North Carolina||No laws.|
|North Dakota||No laws.|
|Oregon||Generally prohibited for applicants and employees.|
|Pennsylvania||Cannot require as condition of employment or continued employment except for employees who dispense or have access to narcotics or other dangerous drugs, or public law enforcement.|
|Rhode Island||Cannot require as condition of employment or continued employment.|
|South Carolina||No laws.|
|South Dakota||No laws.|
|Tennessee||Similar to federal laws.|
|Texas||Certain restrictions applicable to specified government employees.|
|Vermont||Cannot require as condition of employment, except for certain specified limited exceptions.|
|Virginia||Cannot use to inquire into applicants' sexual activities, unless they are criminal. Certain other restrictions also apply to law enforcement agencies and jails.|
|Washington||Generally, cannot require as condition of employment or continued employment.|
|West Virginia||Cannot require or request for applicants or employees, and cannot use results from such tests conducted outside of the state. Certain exceptions apply.|
|Wisconsin||Similar to federal law, with limited exceptions, and additional penalties.|
A written psychological test that is designed to measure an applicant’s honesty may violate the ADA and state laws. Some states restrict employers from performing tests to measure honesty whether by written examination, polygraph, voice-stress analysis, or the like. Again, employers should consult with counsel before adopting any policy to test for honesty.
Screening applicants by use of psychological tests may raise ADA issues if the tests are used to detect mental impairments. Such screening may also raise discrimination issues, depending on the types of questions asked in the test. If lawful, a psychological test should only be required after the employer makes a conditional offer of employment because such a test could qualify as a medical examination under the ADA. Any employer who believes it is necessary to rely on psychological testing should consult with counsel before implementing any such policy.