As national providers of physical abilities testing, we occasionally get the panicked phone call or email from one of our employer clients asking us what we know about a particular lawsuit or legal case they just read about on the internet. Frankly, I’m glad our clients stay on top of the latest information. In an age of information overload it’s difficult for any single organization to keep up with it all.
Just such a situation arose this morning. As I was perusing my email inbox I noticed the Safety Director of one of our employer clients had sent an email asking about a case involving a lawsuit against Celadon Trucking. His request: "Please advise if you have heard any details about this settlement." However, I knew that the real question behind this request was: "Is our pre employment physical abilities testing program putting our company at the same risk as the one cited in the link?"
The opening lines in the article read: "Celadon Trucking (No. 39 in the CCJ Top 250) has agreed to pay $200,000 to settle a 2012 lawsuit brought against the carrier by the U.S. Equal Employment Opportunity Commission over Celadon’s pre-job offer medical screening of applicants for truck driver jobs."
My eyes immediately went to the words "pre-job offer" – words that make all the difference according to the ADA and the EEOC. As the article points out, "Celadon violated federal law by subjecting applicants to medical exams before offering them a job." The article also correctly states that "applicants are protected from such (pre-offer) screenings by the Americans with Disabilities Act." A related article in an online publication, OverDrive, correctly explains that The American with Disabilities Act bars pre-offer medical testing because it creates the opportunity for discrimination against persons with a disability or a perceived disability.
Fortunately, the testing program that we helped our clients develop is applied post-job offer. A conditional offer of employment is made by the employer, contingent upon passing the pre employment Physical Abilities Test, DOT physical and drug test. Those who pass all of these tests are hired and continue through a week of orientation. Those who fail are offered some opportunities to re-test at a later date, depending on the reason for failing the test, but are not hired until they pass.
The key here is that all test results are treated consistently. If the policy is to not hire after failing, then it’s important that all those who fail are not hired. If some of those who fail are hired just because they’re "friends with the boss," legal problems can arise. If re-testing is offered to some with certain conditions, it must be offered to all with those same conditions.
There might be some who would try to argue that a physical abilities test is not a medical test and therefore the ADA and EEOC rules about pre offer testing don’t apply. However, it depends on how the test is administered. The EEOC states that if physiological responses to testing are measured during the test (i.e. heart rate or blood pressure) then it becomes a medical test. If strenuous testing is performed, then monitoring those physiological responses is really necessary to protect the applicant. Additionally, if a medical professional performs the test, it may be considered a medical test. Since most of our tests are performed by physical or occupational therapists who monitor heart rate and blood pressure during testing, it’s difficult to claim that these tests are not medical.
Whether a pre employment testing program is legally compliant can be complicated. If you’re uncertain about yours, it’s best to check with an expert with extensive experience in the field. If you’re contemplating developing a program, these experts can help you develop something that’s compliant with the law and defensible if challenged. In the meantime, keeping up with new legal cases is a good thing – just be sure to read the fine print.