L. Testing

Experts estimate that more than 50 percent of the major corporations in the United States now engage in drug and alcohol screening before hiring new employees; such tests are on the rise, particularly in high technology and security-conscious industries. As a result of such frequent testing, the number of applicants who test positively for drugs is down sharply to under five percent.

Some state laws passed since the mid-l980s protect employers' right to test applicants. Many drug and alcohol tests have generally been upheld as legal, particularly with respect to job applicants (as opposed to employees asked to submit to random tests as a requisite for continued employment) because applicants have less legal right to protest such tests than employees. One basic reason is that such tests are generally not viewed as violating job-seekers' privacy rights since applicants are told in advance they must take and pass the test to get the job, and all applicants must submit to such tests after a job offer as a condition of employment. This freedom of choice for applicants (no one is forcing them to take the test or apply for the job) reduces their claim of legal harm.

To be absolutely certain your company is operating properly in this area, it is essential to research applicable state and local municipal laws regarding the legality of pre-employment drug and alcohol testing. Some states prohibit pre-employment drug testing even though this is in conflict with many states and federal law.

Drug And Alcohol Tests

Drug and alcohol tests of job applicants are neither encouraged nor prohibited by the ADA and the results of such tests may be used as a basis for disciplinary action. The reason is that an employer does not have to hire an applicant who poses a direct health threat to the health or safety of himself/herself or others. In determining whether an individual poses such a threat, the nature and severity of the potential harm, duration of the risk, and the likelihood and immediacy that potential harm will occur are all factors to consider.

An employee or applicant who is currently engaging in illegal drug use is not protected under federal ADA law. Additionally, a current alcoholic who cannot perform his/her job duties or whose employment presents a threat to the safety of others is not protected under the ADA.

TIP: Former drug users or alcoholics who have been rehabilitated or who are participating in a supervised rehabi- litation program are protected under the ADA and must be considered for the job. Of course employers may prohibit the use of illegal drugs and alcohol at the workplace and require that employees not be under the influence of illegal drugs or alcohol while at work. Since the ADA is neutral on the issue of drug and alcohol testing, your company is free to test applicants provided state and local law authorizes same and many procedural safeguards are followed.

The right to test does not give potential employers the right to handle test results carelessly. Unwarranted disclosure of this informa- tion can result in huge damages to companies. In addition, applicants may have rights in the event they are refused a job on the basis of an alleged failure to pass a test and it is later determined that there was a mistake with the test results (i.e., the applicant really passed the test).

Counsel Comment #26: If you decide to screen applicants for drug or alcohol use, your company should adopt a plan and record it in work rules, policy manuals, employment contracts, and/or collective bargaining agreements. This will reduce per- ceived privacy rights of applicants and document company policy in this area. When preparing employment applications, state that the applicant authorizes drug and alcohol tests and agrees that a positive result will mean forfeiture of a job offer. Make the applicant sign such a statement.

Handle the results of drug/alcohol tests as you would any other confidential information. Unwarranted disclosure of this information, even within your company, could result in expensive, time-consuming litigation for breach of privacy rights, including defamation. Six-figure verdicts are being awarded routinely in this area so be careful that the test results are not disclosed to nonessential third parties.

Counsel Comment #27: Since a failure to hire or termin- ation based on a positive test which later proves inaccurate could lead to a multitude of legal causes of action, including wrongful discharge, slander and invasion of privacy, be sure you hire a reputable testing company. If the testing company doesn't carry an "errors and omissions" policy or other insur- ance protecting itself and your company from lawsuits arising from false test results, look for another firm to hire. Only hire testing companies who carry such liability coverage for your protection.

Polygraph Testing Of Applicants

The use of polygraph or lie detector exams by private employers has become the subject of increased scrutiny and criticism. In the past, employers resorted to such tests to verify statements on job applications and reduce employee theft and other forms of dishonesty. However, the tests generally came to be viewed as violating a person's fundamental rights regarding free speech, privacy, self-incrimination and the right to be free from illegal search and seizure. Consequently, the federal Polygraph Protection Act of 1988 was enacted to curb such abuses. Prior to that legislation, only 24 states and the District of Columbia either limited or prohibited the use of lie detectors in the employment context. The law now forbids the use of such tests in all states which previously allowed them and prohibits the use of such tests (defined as any mechanical or electrical process used to render a diagnostic opinion regarding honesty) in all pre-employment screening as well as in discharge and disciplinary proceedings. Thus, applicants generally cannot be requested to submit to such tests; do not even consider offering them to applicants before speaking with experienced labor counsel.

Psychology Tests

Many states have enacted strong laws protecting job applicants from stress tests, psychological evaluator tests and other honesty tests. In other states, the trend is to eliminate or strongly discourage the use of such tests. To be safe in this area, you are strongly advised to speak to a knowledgeable attorney who can advise you on the current status of such laws in your state. Additionally, all tests presently being used should be carefully reviewed and modified if necessary since pre- employment psychological testing has been seriously curtailed. Although legitimate psychological tests may exist, be certain that any tests you are using have been designed legally to comply with existing federal and state law.

TIP: Even if such tests are legal they may be discrim- inatory by causing a different effect, positive or negative, on any race, sex or ethnic group when compared with another group. Any tests which cannot work as well with minorities as with other groups are illegal under EEOC guidelines. Thus, investigate whether inherent discrimination problems exist with such tests so that all tests given do not contain hidden bias or unfairly penalize one group over another.

Skills Tests

Employers must be aware of several important concerns when testing the basic skills level of job applicants. Since failure to pass such tests could be viewed as the result of an attempt to exclude certain groups on the basis of race, age, sex, national origin or religion, companies must be very careful in testing. Title VII of the Civil Rights Act of 1964 as amended prohibits the use of discriminatory tests in making any employment decision.

To avoid liability, the employer must be able to show that any form of a literacy or math skills test offered to job applicants has a high degree of validation (i.e., that a high test score is a strong indication of good future work performance). Under guidelines adopted and disseminated by the EEOC, the Civil Service Commission, and the Departments of Labor and Justice, all literacy tests for prospective employees must be job-related and must adequately evaluate the person's ability to perform the required duties and tasks. Such tests cannot be used to exclude significant numbers of protected minority groups.

Furthermore, the difficulty of such tests cannot be unreasonably related to the job being offered. For example, although a company can test a skill at a level higher than the position being offered if job promotion to that level will ensue in the reasonable future, a company cannot test applicants for skills that are not required in a basic entry position (if that is what is being offered). By setting unnecessarily high standards, companies often exclude qualified minority applicants who lack formal education credits and educational skills but who nonetheless can perform adequately in the basic entry-level position. Be sure to use tests that are at an appropriate level of difficulty and that test basic skills for the position offered.

TIP: If your company requires applicants to enroll in basic skills programs to evaluate their skills as a condition of em- ployment, you may be required to pay for such courses and pay overtime wages for participation under some circumstances.