Testing must be consistent to avoid legal exposure

Post-offer employment testing may help reduce injury rates for some employers, but those who fail to conduct tests consistently and fairly could run afoul of disability and employment laws, experts say.

To perform post-offer employment testing, you “cannot use conditional offers,” said Anne-Marie Foster, a partner at Chicago-based law firm Nyhan, Bambrick, Kinzie & Lowry P.C. “It has to be a legitimate offer — either an existing spot for whoever you’re offering the job or the reasonable expectation that there will be an opening for the person in the near future.”

And every person who receives an offer must pass the same exam. 

“You have to make sure it’s uniform,” she said. “That’s when employers get into trouble with the Americans with Disabilities Act.”

All tasks have to be functionally based and have to “be essential” job duties or the employer could risk violating the ADA or inviting a complaint by the Equal Employment Opportunity Commission, said Michell Despres, vice president and national product leader at Jacksonville, Florida-based One Call Care Management Inc.

If a candidate is unable to perform an essential task but can do it with an accommodation, that must be considered, Ms. Foster said. 

“Sometimes there is … a reasonable accommodation,” Ms. Foster said. “Sometimes there is not. But you have to engage in the inquiry.” 

Employers also face legal exposure if they fail to ensure that testing for a certain job position is consistent across all of its locations, said Daniel Sanchez, Jacksonville, Florida-based vice president of operations for OnSite Physio LLC. 

“Everybody needs to be lock step in making sure they are treating the test in the same way,” he said. If possible, tests should also use the same equipment that the worker will be using to perform essential job duties because it “adds validity to the test and also makes the test more legally defensible.”