HR Employment Law, Chapter 06

Drug-Free Workplace Act (DFWA)

A state law which requires that covered employers develop and communicate policies prohibiting drug use, possession, sale, or distribution in the workplace; inform employees about the dangers of drug abuse and options available for drug counseling and treatment; establish penalties for drug abuse violations; and report to the funding agency any convictions relating to drug use or sale in the workplace.

Random Drug Testing

A testing methodology in which a specified percentage of the workforce is selected for periodic drug testing without prior notice and absent individualized suspicion of drug use.

Job Analysis

A validation study in which the tasks of a job and the knowledge, skills, abilities, and other characteristics needed to perform the job are detailed.

Conditional Offer of Employment

An offer of employment that is "conditional" upon satisfactory results from the medical exam.

Medical Examination

Any procedure or test that seeks information about an individual's impairments or health.

Non Medical Examinations

Drug test limited to a search for use of illegal drugs Physical fitness/Agility tests Polygraph tests Honesty tests Psychological test assessing personality in normal range Vision test to read and identify objects Demonstrating ability to do specific job-tasks

Four-Fifths Rule (80% rule)

An EEOC guideline stating how different test outcomes must be to conclude that discriminatory effects (or "disproportionate selection") are occurring.

T/F? The Omnibus Transportation Employees Testing Act contains important procedural safeguards, it also provides individual employees with the right to sue for improper drug-testing procedures.

FALSE- it does not provide individual employees with the right to sue for improper drug-testing procedures. ****and it appears to supersede state drug-testing laws that would otherwise allow employees to sue over improperly conducted drug tests****

Medical Review Officer

Individual who interprets the results and communicates them to the department.

Genetic Information Nondiscrimination Act (GINA)

Laws that extend broad protection against discrimination on the basis of genetic information in both health insurance and employment to all employees covered by Title VII of the Civil Rights Act.

Genetic Monitoring

Monitoring genetic information for adverse health effects due to occupational exposures.

Validity

Refers to whether the test actually measures what it purports to measure.

Drug Testing

Tests that require employees or job candidates to provide urine, blood, saliva, or hair samples that are sent to laboratories and tested for substances indicating use of illegal drugs.

Validation Study

The evidence needed to establish the validity (and hence job relatedness) of a scored employment test.

Omnibus Transportation Employee Testing Act

The federal law that requires drug (and alcohol) testing of employees in transportation-related occupations, including airline, rail- road, trucking, and public transport workers.

EEOC Seven-Factor Test to determine a "medical examination" found in the ADA (Americans w/ Disabilities Act)

(1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical set- ting; and, (7) whether medical equipment is used.

Common procedural requirements found in state laws regarding Drug-testing employees

1. Employees must be provided with written notice that testing is required. 2. Employees must be provided with copies of the employer's substance abuse and 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 who test positive must be given the opportunity to explain the result. 6. Employees must be given test results in writing. 7. Samples must be collected with due regard for employee privacy.

Employee Polygraph Protection Act (EPPA)

A law which states that private sector employers must not request or re- quire that applicants submit to polygraphs or other mechanical or electrical truth-determining devices (including voice stress analyzers).

Criterion Validation

A primary strategy for validating employment tests that refers to a measure of job performance.

Content Validation

A primary strategy for validating employment tests that require the performance of the same behaviors and skills as the job in question.

Banding

A process where test scores are treated as estimates of tested-for characteristics (e.g., verbal ability, intelligence).

Job-Related and Consistent with Business Necessity

A reasonable factor used by an employer to justify discriminatory selection of people.

Cutoff Score

A specified score below which scores are deemed as "failing" and disqualify candidates from further consideration.

Polygraph

A test that measures changes in physiological responses, including respiration, blood pressure, and perspiration (galvanic skin response).

Fourth Amendment

An amendment of the U.S. Constitution protecting public employees against unreasonable searches or seizures.

Applicant Flow Data

Compares the protected class composition of an applicant pool to that of the group of people who pass the test and are successful (or at least till in the running) in obtaining an employment opportunity.

Unreasonable Search and Seizure

Drug testing when reasonable suspicion is lacking will be upheld if the government shows a special need for the testing that outweighs employees' right to privacy.

Kroll v. White Lake Ambulance Authority

ISSUE: Whether the counseling that the Plaintiff was instructed she would be required to attend in order to remain employed is considered a "medical examination" under the ADA? FACTS: * Plaintiff was instructed by her employer to take psychological counseling, first after an incident involving a romantic relationship with a co-worker, second, following an incident of screaming at a male friend on the phone while a patient was in emergency status. ** The employer told the plaintiff to get Financial assistance from the red cross to pay for the sessions. *** Employer ordered records of visits be released to them in order to monitor attendance. DECISION: The Court found that the actions of the employer, instructing the employee to attend counseling in order to remain employed, constituted a "medical examination" under the ADA. However, the Court did not reach a holding on the case because if such counseling was "job related" and consistent with "business necessity", then the employers actions may not have been discriminatory. For these reasons, the Court remanded the case to the District Court to determine whether such counseling was "job related" and consistent with "business necessity". DESSENT: Judge Sutton believes that because the employer did not choose the facility or councilor and that it was up to the plaintiff to choose and that that choice would of led to the type of testing, be it diagnosis or plain counseling was up to her does not constitute a "required medical examination.

EEOC v. Dial Corp.

ISSUE: *employee filed a discrimination complaint with the EEOC in August 2000. The EEOC claimed that the use of the WTS test had an unlawful disparate impact on female applicants. *Did company prove that the use of WTS to screen applicants was a business necessity bc it reduced number of injuries? DECISION: The Court of Appeals upheld the district court findings of a disparate impact on female applicants and that company had not shown that the WTS was required as business necessity. The court affirmed the trial court finding that Dial was liable for back pay and benefits. The test didn't show actual job conditions. company couldn't show relationship with WTS and Job.

Lanning v. SEPTA

ISSUE: whether or not SEPTA has proven that its 42.5 mL/kg/min aerobic capacity standard measures the minimum qualifications necessary for the successful performance of the job of SEPTA transit police officers. DECISION: SEPTA has demonstrated that the cutoff score it established measures the minimum qualifications necessary for successful performance as a SEPTA officer. * * * One final note. While it is undisputed that SEPTA's 1.5 mile run test has a disparate impact on women, it is also undisputed that, in addition to those women who could pass the test without training, nearly all the women who trained were able to pass after only a moderate amount of training. It is not, we think, unreasonable to expect that women—and men—who wish to become SEPTA transit officers, and are committed to dealing with issues of public safety on a day-to-day basis, would take this necessary step. * * * The judgment of the District Court will be affirmed.

Confirmatory Tests

More sophisticated tests used when initial screening tests come back positive.

Reasonable Suspicion

Observations of aberrant behaviors of employees who have been through drug rehabilitation programs after on-the-job accidents and at random times to ensure that are staying "clean."

Honesty Tests

Paper-and-pencil tests used by employers to determine the integrity of job candidates.

Medical Examinations

Test to check for use of alcohol Blood pressure screening Physical fitness/agility test HIV tests Genetic tests Psychological test used to diagnose mental illness Vision test analyzed by an ophthalmologist or optometrist Diagnostic procedure (e.g., MRI) or medical checkup

random

Testing on a ______ basis is arguably the most intrusive form of drug testing, as it is not suspicion-based or precipitated by any action on the part of the employee.

Genetic Tests

Tests aimed at assessing the predisposition of persons to developing medical conditions or passing them on to offspring.

Chain of Custody

The parties who handle the samples for drug testing.

Race Norming

The prohibition that employers cannot establish separate minimum standards based on protected class or obscure the existence of different standards by altering scores (e.g., by creating separate percentile scores for whites and persons of color).