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How HR Can Ensure Compliance After Making a Job Offer

You've found the perfect candidate and made a formal offer of employment...now what? Your offer of employment might be contingent upon after-offer activities, including: medical exams, drug testing, background checks and/or reference checks. Read on to learn the dos and don'ts when conducting these post-offer activities to ensure compliance with the American with Disabilities Act (ADA) and Equal Employment Opportunity (EEO) laws. 


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Medical examinations

Here are a few things to keep in mind when deciding if you should require medical examinations:

  • Don't conduct medical exams prior to extending an offer of employment. According to the Americans with Disabilities Act (ADA), employers can only require medical testing after an offer has been made and only then if the exams are job related.
  • Do limit medical exams to “fitness for duty” situations and must be consistent with a business necessity.
  • Do make sure any exam results are stored in a secure location whose access is strictly limited.

For the most up to date information and changes to the ADA, please visit: https://www.ada.gov/

Drug testing

Some things to keep in mind regarding  drug testing are:

  • Don't necessarily wait until after you've made the offer to conduct drug tests. Unlike medical exams, the successful passing of a drug test can be required prior to extending an employment offer.
  • Do cover your bases. If employers knowingly hire a drug or alcohol abuser who injures or harms someone on the job, they risk torts of negligence.
  • Do make sure any exam results are stored in a secure location whose access is strictly limited.

For the most up to date information and changes to applicable laws, please visit: https://www.ada.gov/

Background checks

If you are planning on subjecting candidates to background checks, you’ll want to keep in mind:

  • Don't conduct a background check before an offer is made. Any background checks must be conducted after an offer of employment is made.
  • Don't automatically rule out convicted felons. The Equal Employment Opportunity Commission (EEOC) has issued guidelines regarding the consideration of conviction records due to the fact that the population of convicted felons skews heavily towards the African-American and Hispanic communities. You can only consider the conviction in your hiring decision if it has a direct relationship to the job’s content.
  • Don't check the background of applicants and employees based on race, national origin, color, sex, religion, disability and genetic information. If you’re conducting background checks, you should conduct them on everyone.
  • Don't try to obtain an applicant’s genetic information, including their family medical history.
  • Do make sure any exam results are stored in a secure location whose access is strictly limited.
  • Do notify applicants that the information obtained might be used in the hiring decision. This notice must be provided in writing.
  • Do obtain the candidate’s written permission to perform a background check.

For the most up to date information and changes to EEO laws and to ensure EEO compliance, please visit: https://www.eeoc.gov//

Reference checks

There are several different types of reference checks that your organization might require, including:

  • Employment references
  • Educational references
  • Financial references
  • Personal references
  • Certification/Accreditation references

Some items to keep in mind when conducting references checks are:

  • Don't check references from their current employer unless you have been granted explicit permission.
  • Do obtain written authorization to conduct a reference check. While some states require written authorization to conduct reference checks, it is considered best practices to obtain it whether it is legally required by your state or not. You can find this information under the “Labor Laws” section of your state’s website.
  • Do document the name and title of the person you spoke with, when you spoke with them and what information was received.

Here are some example questions to ask on a reference call:

  • “In what context have you worked with {the Candidate} and for how long?’
  • “Can you describe the candidate’s general responsibilities?”
  • “What were the standards of successful performance in the Candidate’s role? How did she/he measure against the standards?”
  • “In what roles / functions do you think she would be particularly successful / find herself struggling”?
  • “Would you work with him/her again?”
  • Depending on the Candidate’s former role, “How would her peers / customers / reports / superiors describe her?”

Please note, this blog post is intended to inform readers of applicable ADA and EEOC laws as it pertains to medical exams, drug testing, reference and background checks in recruitment and hiring, but does not serve as legal advice. 

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