Is Pre-employment testing legal in Canada?
The Canadian Charter of Rights and Freedoms
When we talk about pre-employment testing, such as FCE tests or Functional Capacity Evaluations, we need to talk about the Canadian Charter of Rights and Freedoms (the Charter). It is a constitutional document described as the "supreme law" in Canada because it can be used in courts to challenge or strike down unconstitutional laws or government practices. The Charter guarantees equal rights and treatment based on a number of grounds, including race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. The implementation of the Charter is done at a provincial level via the Human Rights Code (the Code).
Right to Equal Treatment Without Discrimination
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, or disability.
What is Discrimination?
- Not individually assessing the unique merits, capacities, and circumstances of a person
- Instead, making stereotypical assumptions based on a person's presumed traits
- Having the impact of excluding persons, denying benefits, or imposing burdens
It Is Not Legal to Use Medical Assessments to Screen Out Applicants
In the past, employers often screened out applicants with disabilities based on medical information on application forms or from pre-employment medical exams. The Commission takes the position that requiring such information as part of the application screening process violates subsection 23(2) of the Code.
It Is Legal to Use Medical Assessments After a Conditional Offer of Employment
Medical assessments to verify or determine a person's ability to perform essential job duties should only take place after a conditional offer of employment is made, preferably in writing. This allows an applicant with a disability the right to be considered exclusively on their merits during the selection process.
It Is Legal to Use Post-Offer Employment Testing (POET)
A POET compares the job candidate's ability to the essential job duties. It takes place only after a job offer is made—the hiring is conditional on the candidate demonstrating the ability to safely perform the essential job duties. A POET consists of a series of functional tests with pass/fail or fit/not fit standards based on essential job duties.
Example: The candidate has received a conditional offer based on passing the POET. In the POET they must demonstrate that they can perform:
- Frequent overhead work
- Occasional low-level work
- Occasional lifting of 25 lbs from floor to waist
Using a Physical Demands Analysis (PDA) to Determine the Fit/Not Fit Standard
A PDA is a systematic procedure to quantify and evaluate all of the physical demand components of all essential and non-essential tasks of a job. The objective measurements recorded in a PDA become the fit/not fit standard for the POET.
Example: The PDA assessor weighs a car part, measures the distance, and records how many times per hour it must be lifted. The identified job duty then becomes the POET standard: occasional floor-to-waist lifting of 25 lbs.
In Summation, Properly Structured Pre-Employment Testing Is Legal
According to the OHRC, pre-screening is relevant information to obtain about employees during the hiring process. It is important to ensure that employees are able to perform essential duties of the job. One way employers can do this is through a physical demands analysis. While it may not be required for non-essential tasks, all jobs involve physical requirements—whether it's sitting at a desk or performing physically demanding work like lifting heavy packages.
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