Table of Contents Index Previous Page Next Page    Top Ten Tips    Disclaimer

 

Pre-Employment Tests and Examinations

  1. Pre-employment tests or examinations must be job-related and non-discriminatory, i.e., required of all applicants in that job category. EEOC test validation standards are outlined in "Employment Tests and Selection Procedures" at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

  2. Job-related skills tests are permissible if administered consistently and are the best way to confirm whether an applicant's claims of expertise in a certain type of work are true, untrue, or perhaps merely a bit "inflated".

  3. Be careful with inflated or unrealistic self-assessments by applicants - it is common to overestimate one's own skills - that does not prove misconduct or dishonesty, but does demonstrate the need for employers to verify claims of a particular level of skill.

  4. The ADA prohibits medical inquiries prior to making a tentative offer of employment - of course, the ADA applies only if a company has at least 15 employees - to be sure, consult legal counsel!

  5. If medical inquiries are made following a tentative offer of employment, the same inquiries must be made of all applicants for such a position, not just the ones who look like they may have medical problems.

  6. Medical inquiries should relate directly to the essential functions of the job - the "essential functions" are the main reasons for the job to exist, and should be consistent with the job description for the position.

  7. Requests made lawfully under the ADA for medical information must include the following genetic information notice, as per EEOC regulations pertaining to the Genetic Information Nondiscrimination Act: "The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services." The notice may use alternative language, as long as individuals and health care providers are advised that genetic information should not be provided.

  8. The ADA requires employers to maintain any and all medical information in a separate and confidential medical records file.

  9. The employer must be prepared to offer a reasonable accommodation to any otherwise qualified applicant who turns out to have a protected disability.

  10. A "reasonable accommodation" is a change in procedures, a device, a change in duties, a shifting of personnel, or a change in the work environment that the employer could make without "undue hardship" to its business and which would enable the applicant to perform the essential functions of the job.

  11. "Undue hardship" can vary according to the size of the company and the nature of the proposed accommodation.

  12. Drug tests are not included within the definition of "medical examinations" under the ADA and may be given at any time.

  13. Of course, confidentiality rules apply - no one should ever learn of the test results except people with a legitimate need to know.

  14. If a drug test somehow reveals a disability, ADA issues arise.

  15. "Physical agility tests", often used by police and fire departments when screening applicants, are not considered medical examinations under the ADA and may be given at any point in the hiring process, but they must be administered to all applicants in that job category, and if they tend to screen out individuals with disabilities, the employer must be able to demonstrate that the tests are job-related and consistent with business necessity, and further, that no reasonable accommodation is possible that would enable people with certain disabilities to meet the requirements of the test.

  16. Great basic handbook for understanding the ADA: http://www.swdbtac.org/html/publications/dlh/disabilitylawhandbook.pdf.

 

Return to Businesses & Employers
Return to TWC Home