The Laws Behind the Pre-Employment Psychological Evaluation

Why the law shapes this evaluation

The pre-employment psychological evaluation sits where employment law, disability law, privacy law, and peace officer standards all meet. Knowing the basic rules helps agencies run a clean, defensible process, and helps candidates understand what to expect and what their rights are.

Federal law: the ADA sets the timing

The Americans with Disabilities Act generally prohibits employers from requiring medical examinations before a conditional offer of employment. The EEOC's guidance explains that a psychological test counts as a medical examination when it can provide evidence that would lead to identifying a mental disorder or impairment. A clinical psychological evaluation falls in that category, which is why it comes after the offer.

Once an offer is made, the ADA allows a medical or psychological examination as long as everyone entering the same job category goes through it. Two other rules follow:

• Confidentiality. Medical information has to be kept confidential and stored in separate medical files, not in the regular personnel file.
• Withdrawing an offer. If an offer is withdrawn because of the results, the reason must be job-related and consistent with business necessity.

California: FEHA follows the same structure

California's Fair Employment and Housing Act, at Government Code section 12940(e), takes the same approach. Before an offer, employers generally may not require a medical or psychological examination or ask about mental or physical disabilities. After an offer, and before duties begin, an examination is allowed if it is job-related and consistent with business necessity, and all entering employees in the same job classification receive the same examination.

California peace officers: Government Code 1031(f)

For peace officers, California law goes further. Government Code section 1031(f) requires that a peace officer be found free from any physical, emotional, or mental condition, including bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation, that might adversely affect the exercise of the powers of a peace officer.

The same section sets the evaluator's qualifications. A psychologist must be licensed by the California Board of Psychology and have at least the equivalent of five full-time years of experience diagnosing and treating emotional and mental disorders, including three full-time years after the doctorate. A qualified psychiatrist may also conduct the evaluation.

POST Regulation 1955: how the evaluation is done

POST Commission Regulation 1955, in Title 11 of the California Code of Regulations, turns that standard into specific requirements. Among the most important:

• Timing. The evaluation begins only after a conditional offer, and it must be completed within one year before the date of employment.
• Evaluator standards. Evaluators must be competent in POST's defined competency areas and complete 12 hours of POST-approved continuing education every two-year cycle.
• What is assessed. Candidates are evaluated on at least ten POST psychological dimensions, such as integrity and ethics, emotional regulation and stress tolerance, and decision making and judgment, along with a structured assessment of bias.
• How it is assessed. The evaluation uses at least two validated written psychological tests, a review of personal history and background information, and a psychological interview.
• The result. The evaluator considers all of the information together, writes a report with a suitability determination, and signs POST's Psychological Suitability Declaration. A candidate must be found suitable before appointment.

The regulation is built to prevent any single piece of information from deciding the outcome. The evaluator is expected to weigh everything together and tie the conclusion to the demands of the job.

A second opinion is built into the regulation

Regulation 1955 gives a candidate found psychologically unsuitable the opportunity to submit an independent evaluation before the agency makes a final determination of disqualification. The second evaluator should meet the same qualifications as the first.

The agency provides the second evaluator with the job duties and the regulation's requirements, and decides, consistent with its local policies, what other information to share and how to resolve any differences between the two evaluations. Candidates considering this option should ask their agency about its process and timelines right away.

Who sees the results

The psychological evaluation report goes to the hiring agency, not to the public. Several rules protect it:

• POST Regulation 1955 requires the agency to keep the Psychological Suitability Declaration in the background file, while medical information must be maintained as a confidential record, separate from that file. Information shared with other people in the hiring process is limited to what they need for their decisions.
• The ADA requires medical information to be kept confidential and stored separately from personnel files, even if the person is never hired.
• California Civil Code section 56.20 requires employers that receive medical information to have procedures that protect it from unauthorized use and disclosure.

Who pays for the evaluation

In practice, agencies pay for the pre-employment evaluations they require. California Labor Code section 222.5 prohibits requiring a job applicant to pay for a medical or physical examination taken as a condition of employment. The statute speaks to medical and physical examinations specifically, so candidates who are asked to pay for a psychological evaluation should ask the agency how its policy works.

Texas: Occupations Code 1701.306

In Texas, the Texas Commission on Law Enforcement may not issue a peace officer license until the applicant has been examined by a licensed psychologist or psychiatrist who declares in writing that the applicant is in satisfactory psychological and emotional health to serve as the type of officer sought. The hiring agency selects the examiner and keeps the declaration on file, and the declaration is not public information.

Sources

1. EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations
2. California Government Code section 12940 (FEHA)
3. California Government Code section 1031
4. California Code of Regulations, Title 11, section 1955 (POST)
5. California Civil Code section 56.20
6. California Labor Code section 222.5
7. Texas Occupations Code section 1701.306

About the author

Jonathan Arditti, PsyD, is a licensed psychologist in California and Texas who conducts pre-employment, second opinion, and fitness-for-duty evaluations for public safety agencies. He has worked alongside LAPD as a field clinician since 2015.