Principles for Public Safety Employment

 blood, urine, and breath analyses to check for alcohol use;  blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., for conditions such as sickle cell trait, breast cancer, Huntington's disease);  blood pressure screening and cholesterol testing;  nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome);  range-of-motion tests that measure muscle strength and motor function;  pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out);  psychological tests that are designed to identify a mental disorder or impairment; and,  diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI). 51 Note: Although the EEOC has identified the foregoing tests as medical examinations, they are not all permissible tests in California.

b. Drug and Alcohol Testing As a general matter, pre-employment testing of public safety employees for illegal drug use is permitted. 52 Indeed, under the ADA, a test for illegal drugs is not considered a medical examination. 53 Therefore, with the limitations discussed below, employers may test for illegal drugs before a pre-conditional offer is made. However, an alcohol test is considered a medical exam under the ADA. Alcohol tests are only permissible after a conditional offer of employment. 54 Importantly, if a drug test is performed before a conditional offer of employment is made, no other tests may be performed upon the applicant’s blood, urine, etc. 55 While a test for illegal drugs is not considered a medical examination, testing an applicant’s blood or urine for any other reason (including legal drugs) would constitute a medical examination and would likely be considered unlawful. 56 Whether drug testing is performed before or after a conditional offer, the EEOC is of the opinion that employers may ask follow-up questions about an applicant’s lawful drug use after an applicant tests positive for illegal drug use. 57 But an employer is prohibited from asking questions about lawful drug usage that are likely to elicit information about a disability. For example, questions like, “What medications are you currently taking?” or “Have you ever taken AZT?” are not acceptable because they elicit information about whether an applicant has a disability. Lanier v. City of Woodburn 58 An applicant for a library page position challenged the validity of the City’s pre employment drug and alcohol testing. The taxpayer contended that the City’s

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