Pre-Employment Testing: What Employers Can and Cannot Require
Pre-Employment Testing Under Massachusetts Law
During the hiring process, job applicants may be asked to undergo various forms of testing in order to obtain employment. As a job applicant, you might expect a prospective employer to investigate your criminal background or check your references, but there are many other types of pre-employment screening that are sometimes used. These tests may include medical examinations, drug tests, and lie detector tests. Some of these examinations may be acceptable regardless of the nature of the position, while others may only be used by an employer when the essential duties associated with a position requires additional testing or when such testing is required by federal or state law. Below we will describe several different types of pre-employment screening, and when they are permissible in Massachusetts.
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Medical Examinations
Medical exams, prior to the employer making an offer of employment, are not permitted unless they simply involve demonstrating how, with or without reasonable accommodation, the applicant intends to perform the essential duties related to the position.
Employers may make an offer of employment contingent upon the applicant’s ability to successfully pass a medical examination. This practice is permitted as long as the exam is required of all employees entering the same position, regardless of any perception of disability. Potential employees may not be excluded from the opportunity to gain employment unless they are unable to pass any portion of a medical exam that directly relates to the applicant’s ability to perform a necessary job function and the problem cannot be remedied with reasonable accommodations.
Drug Tests
Federal law generally takes a neutral stance on an employer’s ability to administer drug tests as a condition of employment in most industries – although industries such as transportation, aviation, and defense may require drug tests in light of safety concerns. Under Massachusetts law the use of drug tests as a hiring mechanism is neither encouraged nor prohibited. If an employer in Massachusetts chooses to administer a drug test it should occur after an offer of employment has already been made – drug tests should not be administered at any earlier stage in the hiring process.
Additional Considerations:
- If an employer chooses to administer drug tests it must be done so uniformly to all applicants; an employer may not single out specific applicants or groups of applicants based on a suspicion that a particular applicant might be a drug user. An employer that singles out specific applicants or groups of applicants may risk a discrimination claim.
- Employers who choose to administer drug tests must do so in a manner that does not amount to a significant, unreasonable, or serious invasion of privacy. For example, a drug test should not be administered under circumstances that would require multiple test takers to disrobe in the same room. Determining appropriate level of privacy often requires a consideration of the competing interests of the applicant’s need for privacy and the business’s need to obtain accurate test results.
- If the results of a drug test incidentally show the presence of a medical condition that information must be placed in a separate file from the application/personnel file so as to not result in discrimination against an applicant due to disability or handicap.
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Lie Detector Tests
A private employer may not administer a lie detector test to an applicant as a pre-employment screening. However, there is an exception that allows employers the option of providing polygraph tests (a type of lie detector) for specific types of jobs, such as positions in the security and pharmaceutical fields.
Federal, state and local government employers may administer lie detector tests as part of the pre-employment screening process. However, for the most part, only applicants for high-security positions are ever asked to submit to such testing.
Contact an Employment Lawyer
The laws surrounding pre-employment testing can be complicated, with many specific exceptions depending on the position, industry and type of employer. If you need more detailed and specific information about pre-employment testing, please contact an employment lawyer in our office.
Do You Have Pre-Employment Testing Legal Questions?
Call Sankey Law Offices Today At (781)930-3127