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Building Legally Defensible Employment Testing Programs

· 4 min read
Patricia Brown
Patricia Brown
VP of Human Resources

Pre-employment and post-offer testing can significantly reduce workplace injuries, but only when implemented correctly. Understanding the legal requirements and best practices is essential for an effective program.

The Purpose of Employment Testing​

Employment testing helps ensure that candidates can safely perform the essential functions of a job. Benefits include:

  • Reduced early-tenure injuries
  • Lower workers' compensation costs
  • Improved employee retention
  • Better job-person fit
  • Enhanced workplace safety

Americans with Disabilities Act (ADA)​

Key Requirements:

  • Testing must be job-related and consistent with business necessity
  • All candidates for the same position must be tested
  • Testing can only occur after a conditional job offer
  • Medical examinations must be conducted by licensed healthcare professionals
  • Results must be kept confidential

Equal Employment Opportunity Commission (EEOC)​

Testing must not discriminate based on:

  • Age
  • Race
  • Gender
  • Disability
  • National origin
  • Religion

Types of Employment Testing​

1. Physical Ability Testing (PAT)​

Tests specific physical capabilities required for the job:

  • Lifting capacity
  • Carrying ability
  • Pushing/pulling strength
  • Grip strength
  • Cardiovascular endurance

Example: Warehouse position requiring 50-lb lifts

  • Test: Lift 50 lbs from floor to waist height
  • Frequency: Match job demands (e.g., 10 lifts in 5 minutes)

2. Functional Capacity Evaluation (FCE)​

Comprehensive assessment of:

  • Multiple physical demands
  • Sustained activity tolerance
  • Positional tolerances
  • Overall work capacity

Best for: Jobs with complex, varied physical demands

3. Job Simulation Testing​

Candidates perform actual or simulated job tasks:

  • Most job-specific
  • High face validity
  • Realistic preview of work

Example: Firefighter candidate carries equipment up stairs while wearing gear

4. Medical Examinations​

Conducted by physician or licensed provider:

  • Health history
  • Physical examination
  • Vision/hearing screening
  • Drug screening (if applicable)
  • Fitness for duty determination

Developing a Testing Program​

Step 1: Conduct Physical Demands Analysis​

Document the essential physical requirements of the job:

  • Frequency and duration of activities
  • Force requirements
  • Postural demands
  • Environmental conditions

Tests must:

  • Measure essential job functions
  • Reflect actual job demands
  • Be validated for the specific position
  • Have established pass/fail criteria

Step 3: Establish Validation​

Content Validation: Test clearly measures job requirements Criterion Validation: Test scores correlate with job performance Construct Validation: Test measures underlying physical constructs needed for job

Step 4: Set Cut Scores​

Determine passing criteria based on:

  • Minimum job requirements
  • Safety considerations
  • Statistical analysis
  • Expert judgment

Step 5: Standardize Administration​

Ensure consistency through:

  • Written protocols
  • Trained test administrators
  • Calibrated equipment
  • Controlled environment
  • Standardized instructions

Step 6: Document Everything​

Maintain records of:

  • Job analysis
  • Test development process
  • Validation studies
  • Individual test results
  • Accommodations provided
  • Adverse impact analyses

Accommodations and the Interactive Process​

When a candidate cannot pass a test due to a disability:

  1. Engage in interactive process
  2. Determine if accommodation is reasonable
  3. Consider alternative tests or modifications
  4. Evaluate if candidate can perform essential functions with accommodation
  5. Document the process and decision

Common Pitfalls to Avoid​

Testing Before Job Offer​

Problem: ADA violation Solution: Only test after conditional offer is made

Using Generic Tests​

Problem: Not job-specific, difficult to defend Solution: Develop tests based on actual job demands

Inconsistent Administration​

Problem: Discrimination claims, unreliable results Solution: Standardize all procedures

Inadequate Documentation​

Problem: Cannot defend program if challenged Solution: Document job analysis, validation, and all decisions

Setting Arbitrary Standards​

Problem: May screen out qualified candidates Solution: Base standards on actual job requirements

Measuring Program Effectiveness​

Track these metrics:

  • Early-tenure injury rates
  • Test pass rates
  • Adverse impact ratios
  • Employee retention (first year)
  • Workers' compensation costs
  • Time to productivity

Alternatives and Complements to Testing​

Conditional Offers with Restrictions​

Hire with understanding that certain tasks may be modified or restricted.

Graduated Onboarding​

Start new employees with lighter duties, progressing to full demands.

Enhanced Training​

Provide additional training and conditioning for new employees.

Ergonomic Improvements​

Modify jobs to reduce physical demands rather than screening candidates.

Working with Testing Vendors​

If outsourcing testing, ensure vendors:

  • Understand ADA and EEOC requirements
  • Have experience in your industry
  • Provide validation documentation
  • Train your staff
  • Offer ongoing support
  • Maintain proper credentials

Ongoing Program Management​

Annual Review​

  • Analyze test results and outcomes
  • Review adverse impact data
  • Update tests if jobs change
  • Ensure continued compliance
  • Assess program effectiveness

Continuous Improvement​

  • Gather feedback from candidates and hiring managers
  • Refine tests based on data
  • Stay current on legal developments
  • Benchmark against industry standards

A well-designed employment testing program protects both your organization and your employees. The key is ensuring that tests are truly job-related, consistently administered, and properly documented.