THE ADA AND TESTING: WHAT IS PERMITTED AND PROHIBITED?
BY THOMAS D. SCHNEID
What are the prohibitions provided under the ADA with regard to physical ability testing, psychological testing, and related testing programs? An Equal Employment Opportunity Commission (EEOC) publication entitled OEnforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities ActO (May 1994) provides specific information to assist fire service organizations and other covered entities in complying with the requirements of the ADA.
In general, alcohol and controlled-substance testing is not considered a medical examination under the ADA and can be performed before making an offer of employment. However, alcohol and controlled-substance tests used to determine whether an individual is using alcohol or a controlled substance or how much of the substance has been consumed are considered medical examinations if the testing procedure is invasive in nature, such as those of testing blood, urine, or breath. These invasive tests would be considered medical examinations and would be prohibited at the preoffer stage of the evaluations.
At the preoffer stage, fire service organizations should be cautious in the line of questioning used before administering an alcohol or controlled-substance test. Covered fire service organizations are prohibited from pursuing a line of questioning concerning current or prior lawful drug use if this information could reveal the existence, the nature, or the severity of a disability. If the test is conducted solely as a search for unlawful drug or alcohol use and the test results indicate lawful drug use, the covered fire service organization would not have violated the ADA provisions.
The question of polygraph testing is specifically addressed in the EEOC Guidance publication. In general, a polygraph is not considered a medical examination; however, certain inquiries made prior to the administration of the test, as well as questions asked during the examination, are prohibited as preoffer inquiries. In general, questions that elicit information about the disability or impairment are prohibited. Prior to initiating or continuing polygraph testing, fire service organizations also should evaluate the Polygraph Protection Act of 1988 [29 U.S.C. ? 2001 et seq. (1989)] to ensure compliance with this law.
Physical-agility testing designed so that the applicant can demonstrate the ability to perform actual or simulated essential or marginal job-related tasks is not considered a medical examination under the ADA. Likewise, physical fitness tests that measure the applicant?s performance levels of physical criteria such as running or strength are not considered medical examinations. Prudent fire service organizations using these types of tests also may provide descriptions of the tests at the preoffer stage and request that the applicant have his/her private physician review the description and state whether the applicant can safely perform the tests. Fire service organizations also are permitted to request that the applicant assume responsibility and release the fire service organization of liability for injuries that could be incurred during the testing procedures.
Psychological testing, such as I.Q. tests, honesty tests, aptitude tests, and personality tests, are considered medical examinations under the ADA. According to the EEOC Guidance publication, psychological examinations are considered medical examinations to the extent that they provide evidence concerning whether an applicant has a mental disorder or impairment as categorized in the American Psychiatric As-sociations?s most recent Diagnostic and Statistical Manual of Mental Disorders (DSM). The EEOC Guidance pub-lication provides several examples addressing RUOK, RUSMART, IFIB, and other tests.
In general, basic vision tests that evaluate an applicant?s ability to read a label or distinguish an item as part of a demonstration of actual firefighting job performance are not considered medical examinations. In addition, covered fire service organizations may ask an applicant whether he/she has 20/20 corrected vision. However, the requirement that an applicant?s vision be tested by an optometrist or other medical professional would be considered a medical examination and can be performed only at the post-offer stage.
Testing of applicants for fire service organization positions is essential to acquiring qualified personnel. Prudent fire service organizations should evaluate their current testing procedures to ensure that all tests meet the requirements of the ADA and other applicable laws and that the testing properly evaluates applicants. A careful reading of the ADA and the recent EEOC Guidance publication is essential to ensure that your organization?s testing program is in compliance.
THOMAS D. SCHNEID is an associate professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and certificate of advanced study in safety, a law degree, and an LLM (master of laws) degree in labor and employment. He has 14 years of experience as a consultant for general industry.
