HR Chapter 6

The most common drug testing procedures required by state statutes are that employees must

-Be given written notice that drug testing is required -Be given copies of the employer's substance abuse and drug testing policy -Be given test results in writing -Be given an opportunity to explain the result if the test is positive

Job Related Tests

-Even if a test has an adverse discriminatory impact, it may be used if the employer can establish that it is job related and consistent with business necessity. -Employer must establish validity -Does the test measure what it purports to measure? -Two primary ways to establish validity: -Content validity -Criterion validity

Smart Practice -Drug Testing

-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.

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.

Drug testing public employers

-Random drug testing by public employers is prohibited by the 4th Amendment to the U.S. Constitution 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.

Scored Tests of Ability

-Scored tests of ability are designed to screen out candidates with undesirable traits or to hire those with desirable traits. -They measure -intelligence, -aptitude, -specific job skills or knowledge, -work-related attitudes, -personality traits -strength and physical fitness -They must not be discriminatory.

Polygraph & Honesty Tests

-The Employee Polygraph Protection Act (EPPA) forbids private employers from requiring a pre-employment polygraph or other truth-telling devices, including voice stress analyzers. -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.

Genetic Testing

-The Genetic Information Nondiscrimination Act of 2008 forbids employers from using genetic tests or information to screen out or discriminate against employees in health insurance and employment. -Narrow exceptions permit employers to monitor the biological effects of toxic substances at work. -Note that genetic information includes diseases that "run in the family." The EEOC has suggested "safe harbor" language for employers seeking health insurance information.

Accommodating the Disabled During Testing

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

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, and not an absolute legal requirement. -The rule is valid only if there is a large enough applicant pool. -Employers must monitor and maintain records on the effects of testing procedures on different class groups.

Practical Advice for Employers

-Use content validation tests as much as possible. -But do not use them to assess intangible characteristics, such as intelligence, personality, and other intangible characteristics. -Do not use content validation tests for tasks that could readily be learned on the job.

For drug testing procedures, employees must

-Use licensed laboratories to analyze samples -Perform confirmatory tests, if requested, or allow employees sample-s for their own tests -Collect samples with due regard for employees' privacy -Keep results of drug tests confidential

Drug Testing Laws

-vary from state to state. -10 states ban it or limit it to certain safety-related industries. -Random drug testing of union members is a topic of mandatory bargaining, and depends on the Collective Bargaining Agreement (CBA).

Drug Free Workplace Act

Firms that contract with the federal government must comply. 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

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.

Medical Examinations

-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 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 job-related inquiries. -As a practical matter, medical exams should be the last tests performed in the hiring process.

Scoring Tests

-Tests may be scored pass/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

What are the 6 types of employment tests?

Drug tests Medical exams Polygraphs Psychological tests Intelligence tests Scored tests of ability

Content Validity

-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.

Validation Studies

-A validation study provides evidence that a test is related to job performance. -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.

HIV Tests & the ADA

-An HIV test may not be conducted until after a conditional offer of employment has been made. -Because a person who is HIV positive is disabled under the ADA, a positive test cannot be used to deny employment, unless the person cannot perform the essential functions of the job, even with accommodation, or is a direct threat. -Recommended: Except for few jobs, employers should not conduct HIV tests. They can rarely be used and may result in a claim of discrimination.

Americans with Disabilities Act

-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. -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.