HR Chapter 6

Medical examination

any procedure or test that seeks information about an individuals impairments or health but which tests are medical exams is not always clear -if a test is a medical exam then it is covered by the ADA -under the ADA prior to making a conditional offer of employment an employer is prohibited from requiring applicants submit to medical exams -medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are not job related -medical exams of current employees are limited to inquires that are job related and consistent with business necessity -as a practical matter, medical exams should be the last tests performed in the hiring process -drug tests searching for illegal substances are not medical exams -but testing for prescription drugs taken for medical conditions that might be disabling is a medical exam -an employer might be able to show that testing for powerful prescription drugs with sedative effects is job-related and consistent with business necessity, but routine employer access to this information would make the ADA meaningless

Applicant flow data

compare protected class composition of an applicant pool to the group that passed the test -a discriminatory test can be successfully defended by proving that it is job-related and consistent with business necessity

Two primary ways to establish validity

content if it requires the performance of the same behaviors and skills as the job in question: word processing test for secretarial job and criterion: measure of job performance

Polygraph

does not detect lies but measures changes in physiological responses -concerns about accuracy and intimidation

Employee Polygraph Protection Act

forbids private employers from requiring a pre-employment polygraph or other truth-telling devices -exceptions exists for private employers in certain industries -however such tests are permitted after an employee theft or other serious even -pencil and paper honesty tests are permissible

Scored tests

measure intelligence, aptitude, specific job skills or knowledge, personality traits, strength an physical fitness

Genetic tests

medical exams also include genetic tests assessing a predisposition to develop disease -The genetic information nondiscrimination act (GINA) forbids employers from acquiring genetic information regarding applicants and employees -family medical history is genetic information, but conditions or traits already manifested by employees not protected by GINA -GINA requires that pre-employment exams must not include the taking of a family medical history or other forms of genetic information -GINA also prohibits the use of genetic information in making employment decisions -Genetic teasing can take the form of genetic screening of job candidates for desirable or undesirable genetic traits -Genetic monitoring may be used t spot employees exposed to hazardous substances

4th Amendment

protects against unreasonable search and seizure- random drug testing by public employers is prohibited -but public employers may drug test for safety-sensitive jobs or upon reasonable suspicion -drug and alcohol testing of employees in transportation-related jobs is required including airline, railroad, trucking, and public transport workers

Validation study

provides evidence that a test is related to job performance -must be based on a job analysis

Drug testing

providing urine, blood, saliva or hair samples that are sent to laboratories and tested for substances indication use of illegal drugs -tests are given: prior to hiring, as a part of periodic medical exams, to verify that employees who have been through drug rehab programs are "clean"- reasonable suspicion, and at random times: random drug test- a percentage of the work force is selected for periodic drug testing

Drug Free Workplace Act (DFWA)

-develop and communicate policies concerning drug use, sale or possession in the workplace -inform employees about the dangers of drug use and options for counseling and treatment -establish penalties for drug use violations -report andy drug use convictions -under the ADA an employer must not fail to promote, terminate, or otherwise discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs -inquiry must be whether the employee is able to perform the essential functions of the job with or without reasonable accommodation

Accommodating disable persons in testing

-legal responsibility to provide accommodation begins pre-hire -unless the disability is obvious, the employer is not responsible for providing an accommodation unless requested -employers should tell candidates about the types of tests that will be used -employers should document requests for accommodation

Drug testing smart practice

-notify employees if they are subject to drug test -notify employees of the circumstance under which drug testing will occur -notify employees of the consequences of testing positive -carefully label specimens -document chain of custody for samples -respect the privacy of employees being tested -use reputable labs and monitor their performance -use confirmatory tests for positive results -appoint a medical review officer to interpret results -after a positive result, seek information about medications the employee is taking -take into account medications that mazy affect the result -give employees the opportunity to provide alternative explanations for positive results -treat all drug tests as confidential -provide rehabilitation drug programs

Most common procedures

1. Employees must be provided with written notice that drug testing is required 2. Employees must be given copies of the employer's substance abuse drug testing policy 3. Employers must use licensed laboratories to analyze samples 4. Employers must perform confirmatory tests if requested or allow employees access to samples to have their own tests done 5. Employees must be given written test results 6. Employees must be given an opportunity to explain the result if the test is positive 7. Samples must be collected with due regard for employee privacy

The Ominbus Transportation employee testing act

1. use of tamperproof custody seals on specimens containers 2. documentation of the chain of custody( party who handle the sample) 3. confirmatory test 4. use of a qualified medical review officer to interpret results and communicate them