Education for Justice FACT SHEET E-7 Fall 2009
YOUR JOB: BACKGROUND CHECKS, MEDICAL AND
DRUG TESTS AND MORE
Your employer can ask you for all kinds of information about
yourself. They can ask for references,
credit records and criminal records. They
can ask questions to see if you can do the job and can even ask you to take
tests. BUT employers should not ask questions that discriminate. In an interview or on a job application they
should not ask you about your age, marital status, sex, sexual orientation,
race, color, creed, religion, national origin, if you get public assistance, or
have a disability. See our fact sheet Discrimination and Harassment at Work.
REFERENCES
Employers can require you to give a list of references – people who you have worked for or who know you well.
CREDIT RECORDS
Employers can get your credit records from a credit reporting agency. They have to tell you first that they are going to and get your permission in writing. They have to tell you if anything in the credit report is used against you in the hiring decision. They have to give you a copy of the report and a summary of your rights. You have the right to argue with the report. See our fact sheet, Credit Reports.
CRIMINAL RECORDS
Employers can check criminal records. They do not need your permission to get county records. You do have to give permission if they want to look at FBI or state BCA records. If you say no, they can turn you down for the job. Employers have to do a criminal record check for some jobs like health care workers, public school employees and apartment managers. They should only use conviction records if there is a business reason for it. The employer cannot make you pay for a record check. Tell the truth about your criminal history. It is much worse to lie about a conviction than to tell about it up front and explain what you have done since then to turn your life around.
Public Employers: This means city, state, and county governments and agencies. Minnesota Law says that a conviction should not keep you from getting public jobs or keep you from getting a state license unless the crime directly relates to the work. Even then, you should not be turned down for the job if you can show that you can do the job and are “rehabilitated.” Rehabilitated means that you have changed and are not likely to commit the crime again.
The State of
TESTING
BEFORE BEING HIRED
Employers can use personality or psychological tests to screen job applicants. They cannot use lie detector tests or genetic tests. They cannot ask you to take a drug or medical test until they offer you the job. An employer cannot ask about disabilities you have or workers comp claims you have made. They are allowed to say that you have the job if you pass the tests. This is called a “conditional job offer.”
After an employer makes a job offer, they can check some things out more before they give you the job. See below. An employer can ask questions about drug use, but not about past addiction until they offer you a job.
If an employer wants you take a drug or alcohol test they have to give you notice in writing. Everyone who is told they can have the job if they pass test, must be given the same test.
The employer can take back the job offer if you refuse to take the test or if you don’t pass it. If they take back the offer, they have to tell you why and give you written notice about your right to explain or argue the results. You can ask for a re-test, but your employer can make you pay. If you want a re-test you have to tell the employer in writing within 5 working days of the day your employer told you that you failed.
All other new employees in the same job category as yours must be asked to take the same exam you are. The employer must pay for the medical exam. If the exam shows you cannot do the main duties of the job, they can take back the job offer. They have to tell you the decision and the reason for it within 10 days.
The employer can take back the job offer if you will not be able to do the main parts of the job because of a physical or mental medical condition. If you can do the job with a “reasonable accommodation” then you should be able to keep the job. (See below.) An employer can take back the offer if your condition is a threat to health and safety at work.
If you have a disability, the employer must make “reasonable accommodations” if it is needed to help you do the job and will not place “undue hardship” on the employer. This means that the employer must make reasonable changes in the workplace or work policies. For example, installing a wheelchair access ramp or making a change in work schedule for doctor visits. If you can do the main duties of a job with reasonable accommodation, a job offer cannot be taken back because you have a disability.
AFTER YOU HAVE THE JOB
Employers can make you take drug tests. They must have a written drug and alcohol test policy. Generally, employees are not tested more than once a year. At most jobs, the employer has to give you 2 weeks written notice that you will be tested. The rules for jobs like driving buses or cabs or running heavy machines are different and can be stricter. This is also true in some other jobs like health care. Drug and alcohol tests can be done without warning (randomly) to employees in safety sensitive jobs.
No matter what kind of job you have, the employer can make you take a drug or alcohol test, without prior notice, if:
· They have reason to think that you are under the influence of drugs or alcohol at work.
· You break the employer’s written rules against the sale or use of drugs or alcohol during work.
· You are hurt or you hurt another employee on the job.
· You cause a work-related accident or are operating machinery that is involved in an accident.
You have the right to a copy of the test results. You also have the right to have the sample re-tested. If the re-test is bad, then they can discipline you. They can’t normally fire you for the first bad test, unless they offer you treatment and you either refuse or don’t finish it successfully. You might have to pay for the treatment unless it is offered under an employee benefit plan. But the employer CAN suspend you without pay while waiting for the results of the re-test if they think there is a safety reason to do so. If you pass the re-test, your employer has to take you back and pay you for the time you were suspended.
· Medical Exams
The employer can only make you have a medical exam if there is a job-related reason for it. You have to ok it and they have to pay for the exam.
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