Articles - Compliance and Legal

Further danger is that tests may screen out potentially good applicants who may lack specific skills or knowledge being tested, but that may be acquired through minimal on-the-job training. Furthermore, some individuals simply do not do well on tests, but may be very qualified and do well on the job.

Another danger in the use of tests is the possibility that they may be discriminatory to certain individuals. Under the Americans with Disabilities Act, it is discriminatory to use employment tests or other selection criteria that screens out or tends to screen out an individual with a disability, unless they are job-related and necessary for the operation of the business. Tests must accurately reflect the skills, aptitude, or other factors being measured, and not the impaired sensory, manual, or speaking skills of an applicant with a disability.

If requested, you are required to provide a reasonable accommodation for pre-employment testing. It is discriminatory to use pre-employment tests or other selection criteria that screen out or tend to screen out an individual with a disability. The exception is if the tests are truly measuring factors of the job and are necessary for the operation of the business.

The process of validating a test is very technical and complex, and is performed by specially-trained professionals. Before using a pre-employment test in the selection process, contact your agency human resource person or legal counsel to ensure proper use of testing.

- Post Job Offer Tests

The following tests may be administered under certain circumstances after a conditional offer of employment:

Physical abilities tests

Personality or psychological tests that measure personality traits

Medical exams

- Medical Exams

Interviewers may not ask disability- or medically-related questions at the pre-offer stage of the selection process. There are, however, ways to evaluate whether applicants are qualified for the job:

Ask about ability to perform specific job functions. For example, state the requirements of the position and ask if they can satisfy these requirements.

Ask about non-medical qualifications and skills, i.e. education, work history, and certifications or licenses.

Ask applicants to describe or demonstrate how they would perform job tasks with or without reasonable accommodation.

Once a conditional job offer is made, you may ask disability-related questions and require medical examinations, as long as this is done for all employees in that job category.

Information obtained regarding the medical condition or history of an applicant should be collected and maintained on separate forms and kept in separate files, because medical information is confidential.

Tests to determine whether and/or how much alcohol an individual has consumed are considered medical exams.

In summary, medical exams may be required if they are:

job-related,

consistent with business necessity, and

only after a conditional offer of employment has been made.

- Drug Testing

Drug testing may be available for certain positions. Prior to the use of drug testing, contact your agency head or legal counsel.

This information came courtesy of North Dakota Human Resource Management Service

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