Tests to consider for job applicants

Under federal law, a copy of the notice informing job applicants of the polygraph testing prohibitions, exemptions, and the rights provided to test takers under the law must be posted in the workplace. The EPPA poster is available on the Department of Labor's website.

States may also require employers to post their polygraph testing policy or to include a notice regarding polygraph testing in employment applications.

Notices should be posted in a conspicuous location in the workplace where job applicants will have access to the notice.

If you administer lie detector tests to applicants and employees, the following documentation must be retained for three years from the date a polygraph exam is conducted or requested, according to the EPPA:

• a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular employee
• records specifically identifying the loss or injury in question and the nature of the employee's access to the person or property that is the subject of the investigation
• the test's written questions
• all opinion lists and other records relating to polygraph tests of the persons and any charges stemming from them.

Honesty Tests

• Tests that purport to measure a job applicant's "honesty":
• are generally multiple choice or true/false
• vary greatly in quality
• are controversial (Are people really "honest" or "dishonest" or do they react to circumstances? Can "honesty" be measured?)
• can sometimes be second-guessed by the applicant, meaning that they can give the "right" answers rather than the answers that truly reflect their responses
• are not medical exams, even though they determine personality characteristics and may be offered at the pre-job offer stage

Job Applicant Drug Testing

Drug testing is a useful tool for screening applicants and is required by law for some positions.

Drug testing has become more popular as drug abuse becomes a more widespread problem in the United States. Many businesses realize that drug-abusing employees cost them money, and they want to reduce those costs. There are other reasons to test for drug use as well:

• It is a screening device. One of the best ways to protect your business is to aggressively screen out alcohol or drug abusers before they become employees. Drug tests can help pinpoint those who are dependent on alcohol and drugs.
• It is a defensive tool. Giving applicants a drug test protects your business from negligent hiring claims arising from violence or safety violations. It is also true that drug abusers tend to avoid firms that test.
• It may be a legal requirement. For certain safety-sensitive positions and occupations, drug and alcohol testing of applicants is mandated by federal or state law.

Do you have to test all job applicants? You can be selective so long as you don't discriminate against groups protected under anti-discrimination laws. Otherwise, the answer varies depending on state law.

State laws vary on drug testing. In more than half of the states, laws provide guidelines for when you may test applicants and employees and the procedures that must be followed. If you choose to have a drug and alcohol testing program, it must comply with those procedures, safeguards, and limitations.

Where they have been enacted, state laws generally apply to all applicants and employees. They may, however, allow testing of applicants only where the nature of the job is high-risk or safety-sensitive or if testing is required by federal or state law.

Some states explicitly require that you may only test applicants that have been offered a position conditioned on a negative drug and alcohol test. Other states encourage testing by providing lower worker's compensation rates to employers who establish a testing program in conformance with specific requirements.

Consult our state map for the drug testing laws in your state.

Many drug and alcohol testing laws require that job applicants be notified in advance that they may be tested, and under what conditions. Generally, the fact that your company conducts drug and alcohol testing should be spelled out in the job application.

In addition, written notice of the need for testing must be given before the job applicant may be tested. One way to fulfill requirements and protect yourself is to follow these steps, (but check applicable state laws on notice):

• Give the applicant written notice that drug testing is required before hiring, by means of either the employment application itself or a form given out at the first interview. The notice should list over-the-counter medications that may produce a positive test result.
• Invite the applicant back for a second interview.
• Hand the applicant a conditional job offer letter that indicates that the position is conditional upon completion of drug test.
• Announce that the drug test will take place immediately. This procedure will "catch" any applicant who would otherwise have scheduled the drug test at his or her convenience and would have allotted sufficient time for any drug residue to have dispersed from his or her system.
• Give the applicant an information form detailing the time and place of the appointment.
• Deny employment if there is a positive test result.

When Are Medical Exams Permitted for Job Applicants?

Medical exams can be a useful tool for screening job applicants but only to ensure that a job candidate can perform the functions of his or her job.

The purpose of asking job applicants to take a medical examination is to screen out those candidates who would not be able to properly perform their jobs for medical reasons. If you don't think there is going to be a serious need for this information, it's probably not necessary, especially when you consider that if you choose to test people, you'll have to pay for it. Before you test, make sure that any information you may get is worth the expense.

When would such information be useful? The most obvious instance when this information would be useful is if the position requires a tremendous amount of physical activity and exertion.

The biggest pitfall to avoid is asking for medical information that is not relevant. If a person has a medical condition that would not prevent that person from doing the job your hiring for, information about that condition is not relevant to you or your business. Asking for such information merely provides grounds for invasion of privacy suits and disability-based discrimination actions.

If you have 15 or more employees, you are subject to the Americans with Disabilities Act and as a rule, under the ADA, medical tests may not be administered before a conditional job offer is extended.

Also, you may be subject to your state's anti-discrimination laws even if you have less than 15 employees.

Should you decide to test, if you are subject to anti-discrimination laws, you have some issues to take into account. First, you need to determine whether a test you're thinking of using is a "medical test."

The Equal Employment Opportunity Commission (EEOC) considers the following criteria in determining whether a test is medical:

• Was the test administered by a health care professional or trainee?
• Was the test given by the employer for the purpose of revealing an impairment or the state of an individual's physical or psychological health?
• Was the test invasive (e.g., does it require the drawing of blood, urine, breath, etc.)?
• Did the test measure physiological/psychological responses (as opposed to the performance of a task)?
• Was the test normally done in a medical setting?
• Were medical equipment/devices used for the test?

Tests the EEOC would generally consider not to be medical are:

• physical agility/physical fitness tests that do not include medical monitoring
• certain psychological tests such as tests that simply concern an individual's skills or tastes
• tests for illegal use of drugs
• polygraph tests, even though certain inquiries that are frequently made before or during the test would be prohibited pre-offer inquiries

If your test is considered a medical one, the following guidelines will guide you through the maze of what you should and shouldn't require:

• Do not require or request medical exams before you have extended a conditional job offer.
• Do not ask for a medical history or make disability-related inquiries before a job offer is made.
• Require all post-offer applicants in a job category to take the exam; don't just ask those individuals you believe may have a disability.
• Disqualify only those applicants whose medical exams show that they cannot, as determined by a medical professional, perform the essential functions of the jobs that they are seeking or that they are a direct threat to health and safety, even after reasonable accommodation.
• Do not ask the doctors who conduct the medical examination to make employment decisions for you or to decide whether it is possible to make a reasonable accommodation for a person with a disability.
• Be diligent in assuring that the examining doctors make assessments based on testing measures that actually and reliably predict the substantial, imminent degree of harm required. A mere statement by a company physician that a threat of harm exists by hiring a candidate with a particular disability will not shield you from liability.
• Limit the doctor's role to advising you about a person's functional abilities and limitations in relation to the particular job functions.
• Provide the doctors with specific information about the job the applicant seeks.
• Have your medical advisers document the recommendations they make to you.

If you do require medical tests and document them, be warned that medical records should not be kept with other documentation that might be kept in a personnel file. Separate files must be maintained for records relating to:

• medical certifications
• re-certification
• medical histories of employees or their family members

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