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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
