Miscellaneous Tests and Assessments

Miscellaneous Tests and Assessments

Physical Examinations Prior to Employment. Employers may not conduct physical examinations prior to making an offer of employment. After a job offer has been made, you can require the worker to undergo a physical examination at your expense before beginning employment. To be lawful, the employer and employee must complete all non-medical aspects of the application process prior to conducting the examination. An employer may withdraw an offer of employment based on the results of an examination only if the applicant is unable to perform the essential duties of the job with or without reasonable accommodation.

After an employee begins employment, California law requires the examination to be job-related and consistent with business necessity. All entering employees in the same job classification must be subject to the same examination. You cannot require an employee or applicant to pay for any physical examination required as a condition of employment or required by any federal, state or local government law or regulation. You cannot make deductions from an employee’s compensation to pay for these exams. If you require an employee to have a driver’s license as a condition of employment, you must pay for any physical exam that may be required to issue the driver’s license unless the physical exam occurred prior to the time the employee applied for the job.

The ADA and FEHA address several issues surrounding the right to require physical examinations. They impose strict limitations on the use of information obtained from examinations and inquiries.

Polygraphs and Lie Detector Tests. The Employee Polygraph Protection Act of 1988 places stringent regulations on employers’ use of polygraphs, extremely limiting their usefulness. Federal law greatly restricts the use of lie detector tests as employment screening devices and prohibits the majority of employers from requiring or suggesting that applicants undergo tests or from using test results. Federal law also prohibits:

Requiring, requesting, suggesting or causing, directly or indirectly, any employee or prospective employee to take or submit to a lie detector test
Basing employment decisions solely on the test results
Disciplining, discharging or discriminating against any employee or applicant for refusing to take a lie detector test

In addition to these protections under federal law, state law similarly prohibits retaliating against or discharging an employee for refusing to submit to a polygraph, lie detector or similar test.

The federal act contains severely limited exceptions to the general ban on polygraph testing. Under extremely limited circumstances, you can perform polygraph tests on:

Prospective employees of security guard firms
Employees involved in the manufacture, distribution or dispensation of controlled substances
Current employees who are reasonably suspected of being involved in a workplace incident that resulted in an economic loss or injury to your business.

Written Honesty Tests. Honesty tests can be viable alternatives to lie detector tests, but you must administer them carefully due to current uncertainty as to how legislatures and courts will treat them. Written honesty examinations are intended to accurately assess an applicant’s honesty by quantifying the applicant’s self-perceptions of honesty through a series of questions directed at attitudes toward theft and personal experience with dishonesty. The purpose of most of the questions is to isolate dishonest behavioral tendencies and attitudes of the test taker about dishonesty.

A test taker’s profile is compiled from his/her answers, generally in multiple choice, true or false, or yes or no format. The individual’s profile is then obtained by comparing his/her answers to the profiles of people who have been independently judged as honest and dishonest. The results are used as a predictor of the applicant’s on-the-job integrity.

It is unclear if honesty examinations violate the Labor Code section 432.2 ban on polygraph “or similar” tests as a condition of employment.

Psychological Tests. Psychological testing is rarely allowed. You must justify psychological testing by a compelling interest. California courts have addressed the issue of psychological testing of job applicants in the context of the state’s constitutional right to privacy.

In contrast to the employee versus applicant distinction relied upon in drug testing cases, a California Court of Appeal ruled that in psychological testing, no distinction should be made between the privacy rights of job applicants and employees.

Accordingly, it held that any violation of an applicant’s right to privacy must be justified by a compelling interest. In Soroka v. Dayton Hudson Corp., the court found that an employer could not justify a compelling interest when including questions about religious beliefs and sexual orientation in the psychological test, because no relation exists between these questions and job performance.

Psychological testing may, in certain circumstances, violate the ADA. Before conducting psychological testing, consult legal counsel.

Drug and Alcohol Tests For Applicants and Employees. California courts have drawn a distinction between the rights of job applicants and the rights of employees in the area of drug testing. Various laws, including the constitutional right to privacy, impact drug testing.