Post Offer Employment Testing: What Can Employers Legally Do?

[fa icon="calendar'] Apr 3, 2015 9:00:00 AM / by Deborah Lechner

Imagine it’s hiring time, and you have questions about a potential employee’s ability to perform a job. What can you ask? 

What can you test via post offer employment testing? We aren't qualified to give you legal advice so you should always check with your attorney on these things before taking action but we can point you to relevant information. Let's take a look at the applicable laws.

Under the Americans with Disabilities Act of 1990 (the ADA), an employer can ask disability-related questions and require examinations of an applicant only after they’ve been given a conditional job offer.[1] Post offer employment testing fits this guideline, especially if the test administered measures more than the simple ability to perform a task. More on that in a moment.

First, let’s explore the fundamental differences between pre and post offer.

Pre offer, an employer may ask about an applicant’s ability to perform job functions, their non-medical qualifications, or to describe or demonstrate how they would perform job tasks. Overall, employers are not permitted to ask questions that are disability-related or require “medical” examinations.

Post offer, the rules are quite different. After a provisional offer has been made, many of the above restrictions are removed, as long all potential employees in the job category are subjected to the same process.  Making sure you're on the right side of the law however, begs a few important questions.

THE BIG QUESTIONS

To get to the heart of what’s permissible and what’s not with regard to post offer employment testing, employers must consider:

What constitutes a “real” job offer?

According to the U.S. Equal Opportunity Commission, a job offer is real if the employer has evaluated all relevant non-medical information it reasonably could have obtained prior to giving the offer.  The ADA recognizes that this isn’t always possible, though (say it would take an unreasonable amount of time or be too expensive), and allows employers to prove that they have done due diligence and excuses them from getting “all relevant” information.

What is a “medical” test?

It’s sometimes hard to define a "medical test" in this situation. The ADA sets some guidelines.  It’s a medical test if it’s administered by a healthcare professional, the results are read by a trained healthcare representative, it’s conducted in a medical setting, it’s invasive or is specifically designed to reveal an impairment. From an employer's perspective, the clearest gauge exists in this question: “Does the test measure an applicant's performance of a task, or does it measure the applicant's physiological responses to performing the task?” Think of it as the difference between judging a person’s ability to carry a 30-pound weight, and monitoring and analyzing their heart rate or blood pressure while doing it. Though either would be permissible post-offer, the latter is a “medical” test.

What kinds of tests are permitted?

Physical ability, physical agility, medical or non-medical: it’s all fair game post offer, again, as long as all candidates are given the same post offer employment testing. Getting the help of an experienced post offer employment testing company is a good way to ensure your tests truly measure your employees’ tasks.

With whom can employers share medical information?

To summarize, employers are best served if medical information collected prior to the physical abilities testing resides with the post offer testing company.  The medical information can be stored in a database and retrieved at a later time if needed.  When employers have no access to medical information, they can't be accused of making a hiring decision based on medical information which is not allowed under the ADA.

What happens if a candidate is screened out?

It’s always tough to turn someone away, but if an applicant unable to perform the physical requirements of the job (lifting, carrying, pushing, climbing etc), employers can rescind the offer.  Reasonable accommodations are required only for persons with a disability. If the applicant can't perform the physical job demands, then they are better served to seek employment elsewhere, rather than get injured, which forever affects their earning capacity.   [2]

Are you interested in learning more about pre and post employment physical abilities testing?

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Learn steps to developing pre-hire testing

 [1] http://www.ada.gov/

[2] http://www.eeoc.gov/policy/docs/preemp.html

Topics: Pre Employment Screening

Deborah Lechner

Written by Deborah Lechner

Deborah Lechner, ErgoScience President, combines an extensive research background with 25-plus years of clinical experience. Under her leadership, ErgoScience continues to use the science of work to improve workplace safety, productivity and profitability.

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