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November 2010 Transit Cooperative Research Program Sponsored by the Federal Transit Administration Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 34 aPPLICATION OF pHYSICAL aBILITY tESTING TO cURRENT wORKFORCE OF tRANSIT eMPLOYEES This report was prepared under TCRP Project J-5, "Legal Aspects of Transit and Intermodal Transportation Programs," for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Jocelyn K. Waite, Waite & Associates. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution safety-sensitive job positions. Such assessments rou- tinely include vision and hearing tests for employees The nation's 6,000 plus transit agencies need to have required to hold a commercial driver's license (CDL), access to a program that can provide authoritatively drug and alcohol testing as mandated by federal regu- researched, specific, limited-scope studies of legal is- lations, and hearing and spirometry tests required to sues and problems having national significance and meet health and safety standards. Transit employ- application to their business. Some transit programs ees' ability to perform physical portions of essential involve legal problems and issues that are not shared job functions may also be assessed through physical with other modes; as, for example, compliance with ability testing. Moreover, transit agencies may have transit-equipment and operations guidelines, FTA fi- concerns about their employees' health and overall nancing initiatives, private-sector programs, and labor physical fitness as those factors affect productivity, or environmental standards relating to transit opera- health care costs, and workers' compensation costs, tions. Also, much of the information that is needed by which may lead transit agencies to consider imposing transit attorneys to address legal concerns is scattered lifestyle restrictions related to employee weight and and fragmented. Consequently, it would be helpful to off-duty use of tobacco, including instituting physical the transit lawyer to have well-resourced and well- testing to measure compliance with those restrictions. documented reports on specific legal topics available Finally, employers may wish to require assessments to the transit legal community. of physical ability when employees return to work af- The Legal Research Digests (LRDs) are developed ter an injury or prolonged absence. to assist transit attorneys in dealing with the myriad The purpose of this report is to address the legal of initiatives and problems associated with transit ramifications of instituting physical ability testing, start-up and operations, as well as with day-to-day le- and of exceeding government requirements related to gal work. The LRDs address such issues as eminent physical ability (such as visual acuity requirements domain, civil rights, constitutional rights, contract- for a CDL). The report also addresses the relationship ing, environmental concerns, labor, procurement, risk between such testing and medical inquiries and ex- management, security, tort liability, and zoning. The aminations. Legal issues discussed include Title VII transit legal research, when conducted through the of the Civil Rights Act of 1964, the Americans with TRB's legal studies process, either collects primary Disabilities Act of 1990, the Age Discrimination in data that generally are not available elsewhere or per- Employment Act, the Family and Medical Leave Act forms analysis of existing literature. of 1993, and related state requirements. This report should be useful to transit administra- Applications tors, human resources officials, labor officials, unions, employee relations specialists, employees, policy Physical assessments are accepted as a prerequisite makers, and others. to employment in the transit industry, particularly for TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES