ComplianceJanuary 13, 2021

Tests to consider for job applicants

The various tests you can administer to job applicants include achievement tests, physical ability tests and aptitude tests. Drug testing, medical exams, and perhaps lie detector testing may be prudent or even mandatory.

If you're in the process of hiring an employee, depending on the type of position you're hiring for and the industry you do business in, it may be worthwhile for you to test potential hires. In some cases, legal rules and industry standards will require you to administer tests to job applicants. There are various types of tests that can help you gather information regarding a candidate's fitness for the position you're trying to fill.

Before testing job applicants, employers must consider restrictions imposed by various federal and state anti-discrimination laws. If you have 15 or more employees and are subject to federal anti-discrimination rules, or have fewer employees but are covered by your state's law, check with your legal counsel before you administer tests.

Some of the more well-known tests for job applicants that you may be considering include:

  • achievement tests
  • aptitude tests
  • physical ability/agility tests
  • personality tests
  • honesty tests
  • lie detector tests
  • drug tests
  • medical exams

Achievement Tests

Use achievement tests to pick out those applicants who already possess a special skill or knowledge needed to perform a job. As opposed to aptitude tests, which assess an applicant's potential, the achievement test determines what the applicant already knows. Therefore, achievement tests are usually the most reliable and valid at predicting actual job performances.

What type of achievement test should you use? Some achievement tests are actually performances — an applicant is given a letter to be typed or a forklift to be driven. Typing, knowledge of a computers, and other clerical tests are, in fact, the most widely used employment tests because they are demonstrably job-related. If possible, we suggest that you strongly consider using a simple performance test by giving an applicant a task that would be commonly required on the job and seeing how he or she does.

Another type of achievement test is one that puts the applicants in a hypothetical situation to gauge their responses.

Aptitude Tests

Aptitude tests can measure general intelligence, space visualization, mathematical aptitude, verbal conceptualization, and other capabilities. You might want to consider using aptitude tests if you need to measure a person's capabilities and potential.

For example, one kind of aptitude test is a performance simulation, such as a manual dexterity test that requires the test taker to manipulate small parts on a test board. A successful completion of this exercise would demonstrate the applicant's aptitude for small assembly work.

Physical Ability and Agility Tests

Physical ability and agility tests assess an applicant's endurance, strength, or overall physical fitness needed to perform actual or simulated job-related tasks.

Tests in this category do not seek information concerning the existence, nature, or severity of an individual's physical or mental impairment, or information regarding an individual's physical or psychological health. They simply measure an applicant's ability to perform a task.

True physical ability and agility tests, properly administered, are not considered medical tests and are not prohibited before a job offer is made. However, a test that measures an applicant's physiological or biological responses to performance would constitute a medical examination according to the Equal Employment Opportunity Commission's (EEOC) interpretation of the ADA, and cannot be given until after a conditional job offer is made. Therefore, employers subject to federal anti-discrimination rules must be mindful of what constitutes a test of health and what constitutes a test of ability to perform a task. The distinction is not always easy to determine.

Physical ability tests must be given to all applicants regardless of disability. If the tests screen out or tend to screen out persons with disabilities, and you are subject to the laws prohibiting discrimination against disabled individuals, you would have to demonstrate that:

  • The test is job-related.
  • It is consistent with business necessity.
  • Performance cannot be achieved with reasonable accommodation.

Personality Tests

Personality tests were developed by psychologists and psychiatrists for use in counseling and therapy. One commonly used personality test in educational settings is the Myers-Briggs test. For most employers, their usefulness is limited in the hiring process.

Personality tests may help to establish which applicants are mature, objective, sociable, happy, etc., but their use in making employment decisions is controversial. They are difficult to validate and are considered unreliable by some.

Some applicants will attempt to fake personality tests to give the "right" answers. Others will resent what seems to be an invasion of their privacy. If you do decide to use this type of test, make sure that the questions are not too intrusive and that they relate to the job in some way.

When Are Lie Detector and Honesty Tests Useful?

Other tests that can be useful to screen job applicants, but only in limited circumstances, are lie detector tests and honesty tests.

Lie Detector Tests

Lie detector tests should be reserved for instances when they are absolutely needed, such as for jobs where employees:

  • have access to large amounts of money
  • carry guns

Under the Employee Polygraph Protection Act (EPPA), and the law in many states, most private employers are prohibited from requiring, requesting, causing, or suggesting that job applicants (or employees) take polygraph tests as a condition of employment.

Further, employers may not retaliate against job applicants or employees based on the results of a polygraph test or because of a refusal to submit to such a test.

Since the EPPA became effective, polygraph testing of job applicants has been virtually eliminated by private employers.

So when are lie detector tests appropriate for job applicants? Lie detector/polygraph tests may be administered to:

  • certain job applicants of security service firms
  • certain employees of pharmaceutical manufacturers, distributors, and dispensers

The tests may also be randomly administered to federal, state, and local government job applicants and employees. Employees of national defense and security contractors of the federal government may be tested by the federal government but such tests cannot be administered by the contractor itself.

State lie detector testing laws. Some states place additional restrictions on how lie detector tests can be administered and what can be asked. Consult our state map to learn about additional requirements for employers in those states.

If it is determined, with the aid of legal counsel, that your company has the right and the need to test, certain notices must be provided and procedures followed to ensure that the testing complies with all relevant state and federal laws.

Even if the law prevents you from suggesting a test, a job applicant may voluntarily ask to take the test. If you wish to grant the request, all relevant procedures must be followed to ensure that an applicant is not subjected to an illegal polygraph examination.

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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