Post-Offer/Pre-Employment Testing: What Can Employers Legally Do?

[fa icon="calendar'] Feb 21, 2022 3:19:22 PM / by Deborah Lechner

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

Legalities of Pre-Hire/Post-Offer Physical Abilities Tests

What can be tested via post-offer/pre-employment Physical Abilities Testing? We aren't qualified to give you legal advice. So you should always check with your attorney 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 require medial examinations of an applicant only after they’ve been given a conditional job offer.[1] Post-offer employment Post-Offer Physical Abilities Testing fits this guideline, especially if the test includes physiological measures. More on that in a moment.

First, let’s explore the fundamental differences between pre & post-offer testing.

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 or conditional offer of employment has been made, many of the above restrictions are removed, as long all potential employees in the job category are subjected to the same testing 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 Physical Abilities Testing, employers must consider:

What is a “medical” test according to ADA and EEOC ?

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 the applicant's physiological responses to performing job-related tasks in addition to measuring an applicant's performance of 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 makes Physical Abilities Testing a “medical” test.

With whom can medical information be shared?

To summarize, employers are best served if medical information collected prior to or during the post-offer Physical Abilities Testing resides exclusively with the  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 and EEOC.

Is it really important to measure physiological responses to pre-hire Physical Abilities Testing?

The big reason to monitor physiological responses to testing is safety.  During pre-hire physical Abilities Testing, job applicants are typically lifting heavy weights, pushing or pulling high forces or doing repetitive tasks - all of which challenge their physiological systems. Because of this, their blood pressure and heart rate should be measured before the test starts to make sure they are safe to test.  If their resting heart rate exceeds safe levels, they're given the chance to address the problem with their primary care physician and return for testing later.  And their heart rate should be monitored during the test to make sure they don't exceed safe limits.  Not only does this requirement keep people safe during testing, it often informs them of a medical problem they weren't aware of and can now address with medication, diet and/or exercise.   

Why should tests be administered consistently?

Another important factor, according to the EEOC and ADA, is that all candidates applying for the same job must be given the same post-offer employment tests. Consistency in testing requires that equipment, instructions and scoring of the test are all standardized and supported through peer-reviewed published research.  Getting the help of an experienced post-offer Physical Abilities Testing company is a good way to ensure your tests truly measure your employees’ abilities and is compliant with the ADA and EEOC.

Will I have to make a reasonable accommodation for everyone who fails?

No. Reasonable accommodations are required only for persons with a disability. If non-disabled applicants can't perform the physical requirements of the job, then they are better served to seek employment elsewhere, rather than get injured, which forever affects their earning capacity.  One study showed that serious injuries lead to prolonged lost of earning potential.  [2]

Can we really afford to screen applicants out?

It’s always tough to turn someone away, especially in this day of severe worker shortage.   However, if the test represents the job and an applicant is  unable to perform the physical requirements of the job (lifting, carrying, pushing, climbing etc), employers can rescind the offer.  In the words of a wise corporate executive: "

"We understand the importance of working with the right Physical Abilities Testing company and having the proper testing in place. When newly hired team members are injured within a short time of being hired, the company incurs significant additional costs.   In addition to the cost of backfilling the position, there are the costs of re-recruiting and re-hiring for the position, the cost of the   Worker’s Comp legal cases, and EEOC lawsuits.  We see that picture clearly." 

In the long run, hiring only to injure workers or have them leave the job prematurely just doesn't pay.

Are you interested in learning more about post- employment Physical Abilities Testing?

Book Discovery Call Today 

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, Injury Prevention, Legal Defensibility of Pre Employment Testing, Pre-Hire Physical Abilities Tesing

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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