Knowing Your Employee Rights About Employer Testing for Pre-Hires and New-Hires

Written by
Rebecca Smith

Jun 17, 2021

Jun 17, 2021 • by Rebecca Smith

Whether you're looking for a part-time job or launching into a new career, an employer invests in you and your abilities to perform optimally in the workplace. Employers utilize an array of different tests to estimate your skills and qualifications for the job. These evaluations range from aptitude tests, skill assessments, and in some cases, health screenings. 

Before you sign an employment agreement or accept a work position, it's essential to understand what kind of testing (if any) your new employer can or cannot legally request from you. Here are a few questions and answers regarding the reasons and legality of employer testing before and after hiring a new employee.

What is Pre-Employment Testing?

Pre-employment testing is, as the name infers, a set of tests given to a potential candidate under strong consideration for a position but has not yet been hired. Employers use pre-employment testing to assess a candidate’s viability regarding abilities and qualifications for the job. 

Examples of pre-employment tests include personality assessments, performance evaluation, knowledge of essential job functions, and software programs used for the position. Other pre-employment evaluations may encompass drug screening, background, and criminal checks, or even credit history checks, depending upon employment position.

Is Pre-Employment Testing Legal?

Yes, absolutely. That is to say, pre-employment tests are legal as long as the tests measure skills directly linked to the work position for which the potential candidate is applying. Furthermore, employer tests must comply with the Civil Rights Act, adhere to the Equal Employment Opportunity Commission (EEOC), and all assessments must be strictly job-related.

For instance, an applicant for an Insurance sales agents position who is expected to answer phones, type memos, file paperwork, and enter data in spreadsheets may be subjected to tests that are specific to these work tasks. In this case, the employer is legally within its rights to administer pre-employment tests that measure the applicant's phone etiquette, organizational aptitude, typing tests for speed and accuracy or skill tests on specific software programs used in the office. However, it is illegal for employers to conduct testing outside of work tasks such as disability-related testing or demand medical examinations before hiring.

What are Post Offer Tests or Exams?

As the term implies, post-offer employee testing relates to various assessments administered to an employee who has accepted the terms of employment and has been granted a paid position within the company or business. These tests are typically more physical and medical in nature. Due to laws against discrimination, an employer cannot test a candidate's physical aptitude before hiring. However, an employer can request physical assessments to determine the employee's capacity for heavy lifting on the job (if required). Post-hire exams may also include evaluation of flexibility, heart rate testing, or respiratory function. Additionally, an employer may request medical histories or information on pre-existing medical conditions depending upon the position or circumstances.

Are Post Offer Employee Tests Legal?

Yes and no. It depends. After the hire date, an employee is subject to employer drug or medical testing as long as it falls in the legal realm of job-related evaluations. Post-hire testing must comply with similar rules for pre-employment assessments in that they must honor the employee's civil rights and obey EEOC regulations. If there is definitive proof that the employee's medical condition jeopardizes workplace safety, the employer may legally reserve the right for medical testing depending upon the situation.

Can an Employer Demand an Employee to Take HIV or STD Tests?

Sexually transmitted infections or diseases such as syphilis, HIV, or chlamydia are not spread through casual contact or the environment. Furthermore, these conditions are not recognized as disabilities by the Americans with Disabilities Act (ADA). Therefore, an employee is neither required to take an at-home STD test, nor obligated to disclose whether she or he has a sexually transmitted condition.

There is, however, a caveat. If an employee is considered a direct threat in the work environment, the employer must provide protective measures, and STD testing may be required. An example of this is an employee working in the medical industry in which there may be a high risk of contact with bodily fluids (such as in surgeries, blood-taking, sample collections, etc.). In this case, ADA regulations allow STD testing and heightened protective procedures to avoid the potential spread of infections.

Can an Employer Legally Require a Lie Detector Test?

The simple answer is no, but there are exceptions. In general, no private employer can legally subject an employee to a lie detector test either before or during his or her time of employment with the company. In 1988 the federal government passed the Employee Polygraph Protection Act (EPPA), which forbids employers from conducting lie detection tests on employees. Exceptions to the EPPA include candidates or employees hired in local, state, or federal government agencies, security firms, or law enforcement. Employees in pharmaceutical distribution, dispensaries, sales, or manufacturing may also be subject to polygraph tests.

How Employer Testing is a Benefit to Employees

Employer testing might seem like a nuisance or even an invasion of privacy. In reality, employee evaluations result in safer working environments, better productivity, and hiring based on qualifications instead of non-related criteria. In other words, employer testing allows you as an employee to accept employment on your merit, skills, and aptitude. Furthermore, employer assessments administered in compliance with local, state, and federal laws are for your protection. Your rights as an employee should always be honored. But it’s also essential to recognize the rights of your employer. In summary, testing and standardized hiring practices place you in an empowering position to work effectively and safely.