MGMT 53600 Employment Law chap 6

May an employee refuse to be tested?

no with some exceptions

drug tests vary from state to state

◦About half of all states have drug testing laws ◦Some require drug testing of certain types of employees or under certain circumstances (e.g., post-accident) ◦No state prohibits all drug testing of employees ◦Random drug testing of union members is a topic of mandatory bargaining, and depends on the Collective Bargaining Agreement (CBA)

criterion validity

"Criterion" refers to a measure of job performance. Criterion validation requires a demonstrated statistical association between performance on a test and performance on the job Criterion validation studies may be: ◦predictive or ◦concurrent A typical measure of association is the correlation coefficient A positive correlation indicates a link with job performance

job related

A discriminatory test can be successfully defended by proving that it is job-related and consistent with business necessity The employer must establish validity ◦Does the test measure what it purports to measure? Two primary ways to establish validity: ◦Content validation ◦Criterion validation A test has content validity if it requires the performance of the same behaviors and skills as the job in question ◦Example: word processing test for secretarial job Content validation cannot be used to validate tests of intangible traits (intelligence, personality) Many jobs can be learned quickly. Testing that screens out people who could perform the job following minimal on-the-job training are not job-related and consistent with business necessity A validation study provides evidence that a test is related to job performance It must be based on a job analysis Although not required by law, it is wise for an employer to establish validity before using a test The EEOC provides guidelines for how to proceed

medical exam

A medical examination is any "procedure or test that seeks information about an individual's 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 Americans with Disabilities Act (ADA)

polygraphs

A polygraph does not "detect lies" but measures changes in physiological responses But concerns about accuracy, intimidation The Employee Polygraph Protection Act (EPPA) forbids private employers from requiring a pre-employment polygraph or other truth-telling devices Prior to its passage, preemployment polygraphs were routinely used Exceptions exist for private employers in certain industries (controlled substances, nuclear power plants, etc.) However, such tests are permitted after an employee theft or other serious event Pencil and paper honesty tests are permissible

use of results

Courts are reluctant to protect at-will employees from termination based on drug tests, even if conducted improperly Disparate treatment claims are possible if the drug tests results of otherwise similarly situated employees lead to one being fired, and the other given more lenient treatment based on his protected class characteristic Employers should treat test results as confidential

drug tests

Drug testing in employment is used: ◦Prior to hiring; ◦As part of periodic medical exams; ◦To verify that employees who have been through drug rehab programs are "clean"; ◦Upon observation of aberrant behavior that create reasonable suspicion of drug use; ◦And randomly. In random drug testing, a percentage of the work force is selected for periodic drug testing Random drug testing by public employers is prohibited by the Fourth Amendment to the U.S. Constitution, prohibiting unreasonable search and seizure, and some state constitutions 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

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 & employees Note that family medical history is genetic information, but conditions or traits already manifested by employees not protected by GINA There are narrow exceptions to GINA's protections, including voluntary disclosure, medical leave requests, and public sources Employers are apt to violate GINA by requesting information to health care providers The EEOC has suggested "safe harbor" language for employers seeking health insurance information GINA requires that pre-employment exams must not include the taking of a family medical history or other forms of genetic information gathering GINA also prohibits the use of genetic information in making employment decisions Genetic testing can take the form of genetic screening of job candidates for desirable or undesirable genetic traits Genetic monitoring may be used to spot adverse change sin the genetic material of employees exposed to hazardous substances ◦Narrow exceptions to GINA permit employers to monitor the biological effects of toxic substances at work

drug testing smart practice

Notify employees if they are subject to drug testing Notify employees of the circumstances 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 may affect the result. Give employees the opportunity to provide alternative explanations for positive results. Treat all drug tests as confidential. Provide rehabilitation drug programs

scored tests of ability

Scored tests of ability are designed to hire those with desirable traits They measure ◦intelligence, ◦aptitude, ◦specific job skills or knowledge, ◦work-related attitudes, ◦personality traits, strength and physical fitness Persons who score better are hired. Such tests must not be discriminatory

examining test items

Test items should be examined to see if they relate to protected class characteristics Tests containing such items should not be used

cutoff levels

Tests may be scored pass/fail Cutoff scores are established; those scoring below fail Passing scores may be ranked Employers may not use "race norming" or otherwise adjust scores based on protected class characteristics In determining appropriate cut-off levels, an employer should not set the bar artificially high, with discriminatory effects. "Banding" of similar test scores (82-86) and treating them similarly has been upheld

drug test procedures cont

The Omnibus Transportation Employee Testing Act regulations for drug testing include: Use of tamperproof custody seals on specimen containers Documentation of the chain of custody Confirmatory tests Use of a qualified medical review officer to interpret results & communicate them Firms that contract with the federal government must comply with the Drug-Free Workplace Act (DFWA) The DFWA requires that employers: ◦Develop & 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 any drug use convictions Under the Americans with Disabilities Act (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. The inquiry must be whether the employee is able to perform the essential functions of the job, with or without reasonable accommodation. ◦If the applicant is able, the medical condition does not disqualify him.

accommodating a disabled person during testing

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

drug test procedure

The most common procedures required by state statutes are: ◦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

examining test results

To avoid discrimination, compare the protected class composition of an applicant pool to the group that passed the test (applicant flow data) To determine the significance of the difference, EEOC follows the four-fifths rule ◦If the selection rate (the % of applicants to pass the test, and continue to be considered) for one protected group is less than 80% (4/5ths) of the selection rate for the protected group that was most successful, this is evidence of discriminatory effect Note that the 4/5ths rule is a rule of thumb, but it does not always suffice It can be misleading when the number of applicants is small Employers must monitor and maintain records on the effects of testing procedures on different class groups

Medical Exams and 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 inquiries 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 & consistent with business necessity, but routine employer access to this information would make the ADA meaningless