Experienced Employment Lawyer Handling Employee and Applicant Testing Matters
Throughout Maryland and the District of Columbia and Including the Annapolis, Glen Burnie, Columbia, Silver Spring, Frederick. Anne Arundel and Howard Counties Areas
Joyce E. Smithey is a seasoned employment attorney who represents employers and employees throughout Maryland in matters involving employee and applicant testing as a condition of employment. Ms. Smithey also counsels employers in Maryland regarding employee and applicant testing policies and compliance with state and federal laws.
Testing Job Applicants & Employees: Not Always an Option
For many employers, it makes considerable financial sense to identify and eliminate unsuitable job applicants as early in the hiring process as possible. An effective way to minimize hiring mistakes is to administer one or more various pre-employment tests to potential job candidates. Before investing too much time, effort, or money into the evaluation of an applicant, employers can rule out those who fail the test(s).
Some common pre-employment tests that many employers administer to job hopefuls include skills assessment tests, personality tests, drug tests, aptitude tests, psychological tests, and more.
However, employers should administer these tests cautiously, as many state and federal guidelines restrict the nature and type of allowable testing methods. Similarly, job applicants should carefully consider their own rights to privacy before subjecting themselves to pre-employment tests.
Skills Assessment Tests
Skills assessment tests can include anything from typing tests, computer program efficiency tests (e.g., Microsoft Excel, Quickbooks, etc.), technical writing tests, marketing strategy tests, and more. They can also include physical skills tests, such as those that demonstrate an individual’s ability to lift heavy loads.
Generally, employers are permitted by law to administer skills tests as long the particular test truly assesses and evaluates the skill(s) necessary to perform the specific job at hand.
Aptitude, Psychological, and Personality Tests
Some employers use oral or written tests (often in multiple-choice format) designed to assess a job applicant’s personality, psyche, and/or general ability to successfully perform a particular job. Such tests often evaluate a candidate’s numerical, verbal, and written skills as well as the ability to “reason.”
These particular types of aptitude tests are different from basic skills tests because they attempt to measure an applicant’s capacity to learn the ins and outs of the job through proper training (as opposed to the measurement of existing skills). Aptitude tests can be very general (i.e., IQ tests) or specific.
While these tests may seem like a logical means to weed out unsuitable job candidates, they are often inappropriate and may be viewed as illegally discriminatory for a number of reasons, including the following:
- A personality test may invade a job applicant’s privacy rights if it asks personal questions regarding religious beliefs, national origin, marital status, age, etc.
- An aptitude test in multiple choice format may be discriminatory against female and/or minority job applicants because it actually reflects an individual’s ability to take a test rather than authentic job skills.
- A psychological test may be discriminatory, invasive of privacy rights, and it may illegally elicit responses that indicate an individual’s mental illness, impairment, or disorder. As such, this type of test falls squarely within the scope of the federal Americans With Disabilities Act (ADA) (and all restrictions contained therein).
Testing Those With Disabilities
When employers do administer pre-employment tests to job applicants, they must be extremely careful so as to avoid discriminating against those protected by the ADA. Specifically, the law prohibits employers from requiring tests that do not necessarily measure skills but rather unfairly rule out those with disabilities.
While it always legally risky to administer such tests, certain ways to avoid such discrimination include the following:
- Steer clear of pre-employment tests that that give consideration to impaired or reduced sensory, mental, speaking, or manual skills unless said skills are specifically related to the job at hand. For example, a typing test may eliminate those applicants who cannot utilize their hands or fingers due a disability; but if it is a test for a typist job, then such a test is lawful and acceptable.
- Make reasonable accommodations for those with disabilities by administering tests that do not take into consideration their challenges. For example, if an employer wishes to administer a verbal test to applicants for a marketing position in order to evaluate their marketing skills, the employer should offer a written test to a deaf candidate. Such an accommodation is reasonable because, while hearing is not required for the marketing job, it is required to take a verbal test.
Maryland’s Treatment of Pre-Employment Testing/Questions Pertaining to Physical, Psychological or Psychiatric Illness, Disability, Handicap or Treatment
Maryland employers may not require applicants for employment to answer questions that relate to psychiatric, psychological, or physical illness, treatment, disability, or handicap UNLESS:
- Having any of these conditions directly, timely, and materially affects an applicant’s fitness and/or ability to perform the specific job.
- Note: Employers are not prohibited from requiring an applicant to undergo an appropriate medical/physical examination (conducted by a physician) in order to assess an applicant’s ability and capacity to perform the specific job.
Genetic Testing of Job Applicants and Employees
Maryland law prohibits employers from refusing to hire a job applicant or from firing an employee based on the results of an individual’s genetic tests. Moreover, employers cannot penalize a job applicant or employee for refusing to submit to a genetic test or refusing to disclose the results of a genetic test. This is also true with respect to an employer’s determination of an employee’s benefits based on the results of genetic tests.
Lie Detector Tests
The Employee Polygraph Protection Act prohibits Maryland employers from suggesting, requesting, or requiring job applicants or employees to submit to lie detector tests as a condition of employment or maintaining employment.
Employers who violate this state law commit a misdemeanor subject to significant fines.
Drug & Alcohol Testing
For the most part, federal law does not prohibit employers from administering drug tests to job applicants or employees. Rather, this area is governed by applicable state laws. Maryland law, for example, does not prohibit private employers from requesting job applicants or employees to submit to tests for the use or abuse of alcohol or illegal drugs (or any dangerous controlled substance) – as long as such tests are administered for legitimate business interests (i.e., job-related).
Moreover, Maryland law does not specifically limit the instances in which a private employer can request an applicant or employee to pass an alcohol or drug test as a condition of hiring or continued employment.
Despite these “allowances,” Maryland law sets forth specific requirements that an employer must follow when administering alcohol and drug tests to job applicants/employees:
- The relevant specimens (i.e., blood, urine, hair, or saliva) must be tested by laboratories certified by the State of Maryland
- The tests must be conducted at the employer’s expense
- The employer must notify the applicant/employee (at his or her request) of the name and address of the lab performing the tests
State law also provides that an employer must provide any applicant or employee who tests positive for alcohol or drug use:
- A copy of the employer’s policy for such testing (written)
- A copy of the results of the test
- A written statement regarding any action the employer intends to conduct based on the adverse test results
- A statement regarding the right of the applicant/employee to conduct an independent test to confirm the results (at the employee’s expense)
Note: In recent years, Maryland’s courts determined that the state’s Testing Statute does not allow employers to require breath alcohol testing.
Not All Results of a Drug Test Are Available for Employer Use
Maryland’s Testing Statute mandates that certain information that may be made available through the drug and alcohol testing of job applicants and employees should not be given to an employer. To this end, the law states that any physician or laboratory (including one retained by the employer) is prohibited from revealing any information regarding an employee’s or applicant’s use of one or more non-prescription drugs or drugs that are not specifically prohibited by Maryland law.
Schedule a Consultation with Employment Attorney Joyce E. Smithey, who Focuses On Employee and Applicant Testing Matters
Job applicant and employee testing issues arise in a number of ways for both employers and employees. Sometimes, employers do not realize that certain employee and applicant testing is prohibited under Maryland law and/or federal law, such as the ADA. However, such ignorance generally is not a defense to resulting lawsuits.
If you are an employer and wish to speak with an employment lawyer about the possibility of implementing particular employee and applicant tests, or if you are an employee who may have questions regarding the legality of a specific test administered to you, contact Joyce E. Smithey to arrange a confidential consultation. Ms. Smithey is a partner in the Maryland law firm of Rifkin Weiner Livingston LLC; and she represents employers and employees throughout Maryland and the D.C. area.
To schedule a confidential consultation, call (410) 269-5066 or send Ms. Smithey a message online today.