The test must measure only essential job-related abilities and must be required of all applicants for the same position, regardless of disability (except for tests authorized under the workers’ compensation law). The test must accurately measure the applicant’s aptitude, achievement level or other relevant factors and it may not reflect the applicant’s impaired sensory, manual or speaking skills except when those skills are what are being legitimately tested. Employers who employ at least 15 employees during each of 20 or more calendar weeks in the current or preceding calendar year also must comply with the federal Equal Employment Opportunity Commission (EEOC) guidelines for pre-employment tests. Under those guidelines, an employer may be required to prove that its test has no adverse impact on any member of any protected group. Employers who must comply with the EEOC guidelines are advised to seek the advice of counsel. An employer conducting a pre-employment test should be able to demonstrate that the test truly measures essential job-related abilities. If a facially neutral test or other business practice has a statistically significant, disparate impact within a protected class, such as sex or race, an employer may need to show the practice is job related and, if so, that no comparable, effective practice exists which has a significantly lesser adverse impact. Unless the test is obviously job-related, such as a typing test for an applicant for a typing job, the employer may want to consult an expert to be sure the requirements of the law are met. PRE-EMPLOYMENT PHYSICAL EXAMINATIONS A Minnesota employer at their own cost, may require an applicant, as a condition of hire, to submit to a pre-employment physical examination, which may include a medical history, if the applicant has first received an offer of employment contingent only upon passing the physical exam; the exam tests only for essential job-related abilities; and the exam is required of all persons conditionally offered employment for the same position, regardless of disability (except for exams authorized under the workers’ compensation law). The physical may include a drug and alcohol test if the requirements of the Minnesota drug testing statute are followed. An employer may not refuse to employ an applicant due to physical inability to perform the job unless the applicant is unable to perform the essential requirements of the job. If it appears, pursuant to competent medical advice, that the applicant may not be able to perform the essential duties of the job, certain employers have an obligation to “reasonably accommodate” the applicant, unless the employer can demonstrate that the accommodation would impose undue hardship on the company. Reasonable accommodation means taking steps to accommodate the known physical or mental limitations of a qualified disabled person. The reasonable accommodation requirement applies to those employers with 15 or more employees. See the section of this Guide entitled “Issues for Employers – Human Rights.” EMPLOYEE DRUG TESTING By statute, an employer may not require an employee or job applicant to undergo drug testing unless testing is done pursuant to a written drug testing policy that meets statutory criteria, and testing is conducted by an approved laboratory. The statute applies to both alcohol and drug testing.
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