Application of Physical Ability Testing to Current Workforce of Transit Employees (2010)

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9 plicants may take the test and rely on the result for a fixed period of time.40 Commercial drivers.—Except for the requirement of a passenger endorsement, other commercial drivers are subject to the same CDL physical requirements as tran- sit bus operators.41 Some employers of such commercial drivers impose standards beyond those required by the FMCSA, for example, requiring drivers of vehicles with gross vehicle weight (GVW) of 10,000 lb or less to meet the FMCSA CDL standards for drivers of vehicles with a GVW of more than 10,000 lb.42 Employers of commer- cial drivers may require strength testing as part of the hiring process43 or under other circumstances, such as upon return to work from an injury. Questions about assessing the physical capacity of commercial drivers are relevant for transit operators as well. For example, the issue of whether a municipal sanitation driver with night blindness was considered disabled under the Americans With Disabilities Act of 1990 (ADA)44 would also be relevant to transit bus drivers. The Second Cir- cuit held that such a worker was covered by the ADA.45 Maintenance workers.—Employers may require physical ability testing for applicants and/or employees in other maintenance-related jobs. For example, the 40 For example, the Maine Department of Public Safety re- lies on the physical fitness test of the Maine Criminal Justice Academy. Applicants must pass the test in order to be placed on the employment register, and may rely on results obtained within the previous year. Maine Department of Public Safety, State Police Trooper, Application Process, www.maine.gov/bhr /state_jobs/directhire/StatePoliceTrooper(10-24-05).htm (accessed Oct. 28, 2009). 41 Although the Federal CDL requirements do not apply di- rectly to most transit operators, many states have adopted the federal medical requirements, as have many transit agencies. See II.B., Commercial Driver’s License/Medical Requirements, infra this digest. 42 United Parcel Service (UPS) had imposed a blanket pro- hibition on drivers who could not meet the FMCSA hearing standard, regardless of vehicle size. In June of 2009, UPS ap- parently agreed to allow drivers who cannot meet the FMCSA standard to compete for jobs driving small delivery vans, pro- vided the drivers are able to pass special tests and receive training. Bob Egelko, UPS to Allow Hard-of-Hearing Drivers, SAN FRANCISCO CHRONICLE, June 17, 2009, www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/17/BA5A188 DRO.DTL (accessed Nov. 16, 2009). See III.B.3, Elements of Claim, infra this digest. 43 E.g., University of Illinois at Urbana-Champaign requires ARCON strength test for drivers as part of preemployment testing. Employment Services, Nonacademic Staff Pre- Employment Testing, Pre-Employment Physicals, Drug Test- ing, and ARCON Strength Testing, www.shr.illinois.edu/ employment/Pre-EmployTest.html (accessed Nov. 16, 2009). 44 101 Pub. L. No. 336, 104 Stat. 327, July 26, 1990, codified as 42 U.S.C. §§ 12101 et seq. Tit. I, Employment, is codified as 42 U.S.C. §§ 12111–12117. 45 Capobianco v. City of N.Y., 422 F.3d 47 (2d Cir. 2005) (sanitation driver dismissed due to congenital night blindness was disabled and could have performed with reasonable ac- commodation). Ohio Department of Transportation requires applicants for the position of Highway Technician 1 to pass a physical ability test as part of the interview process. Employees in this position operate basic equipment and perform seasonal highway maintenance activities, in- cluding minor repairs and maintenance on equipment. The test, which is meant to demonstrate that candi- dates can perform the essential physical duties of the job, requires candidates to “physically demonstrate the ability to lift, pull, drag, and/or maneuver between 50- 100 pounds.” The test course uses on-the-job equipment and materials. Candidates must successfully complete each of six events to proceed with the interview proc- ess.46 Western State College of Colorado includes vehicle mechanics in the job classifications for which new hires must pass a post-job offer, preemployment physical abil- ity test. The purpose of the test is “to ensure the pro- spective employee possesses the physical capabilities necessary to safely perform the essential functions of the job.”47 II. STATUTORY AND REGULATORY REQUIREMENTS THAT RELATE TO PHYSICAL ABILITY TESTING OF TRANSIT EMPLOYEES Transit agencies should be familiar with the regula- tory requirements associated with CDLs, drug testing, and Occupational Safety and Health Administration (OSHA) requirements (or the state equivalent, as appli- cable). This section reviews those statutory and regula- tory requirements that either directly require physical ability testing of transit employees or that could be cited in support of such testing to provide context for two legal issues that may be less familiar: whether a transit agency may impose more stringent standards than those described in this section, and, if so, what the parameters are for testing to that higher standard.48 The discussion covers the issues of whether federal regulations preempt state laws on drug testing and what are permissible uses of the results of drug tests. Constitutional challenges to drug testing and the legal ramifications of transit agencies conducting physical ability testing not explicitly required by federal or state law are discussed in Section III, Legal Restrictions on Physical Ability Testing. 46 Jennifer Sradeja, Physical Abilities Tested as Part of HT Series, Ohio Department of Transportation Employee Newslet- ter, Dec. 2004, at 11, www.dot.state.oh.us/Divisions/ Communications/transcript/Transcript&20Archive/ Accomplishments2004.pdf (accessed Nov. 10, 2009); Highway Technician 1 Job Description, http://agency.governmentjobs. com/ohio/default.cfm?action=viewclassspec&classSpecID= 87625&agency=1483&viewOnly=yes. 47 Employment Opportunities at Western, www.western. edu/administration/hr/Applicants/job-listings.html. 48 E.g., Shannon v. N.Y. Transit Auth., 332 F.3d 95, 103 (2d Cir. 2003) (allowing NYCT to set higher requirement for color blindness than in federal standard).

10 A. Drug and Alcohol Testing49 The Omnibus Transportation Employee Testing Act of 1991 (Omnibus Testing Act)50 requires alcohol and controlled substance testing for employees performing safety-sensitive functions in several modes, including mass transit. The U.S. Department of Transportation (USDOT) implements this legislation through the de- partment’s regulation on Procedures for Transportation Workplace Drug and Alcohol Testing Programs.51 Both FMCSA and FTA apply those procedural requirements through their drug and alcohol testing regulations.52 Federal Railroad Administration (FRA) requirements, which predate the Omnibus Testing Act, apply to com- muter rail employees.53 Section 5331 of U.S.C. Title 49 also requires a pro- gram of alcohol and controlled substance testing to ap- ply to recipients of funding under §§ 5307, 5309, and 5311 of Title 49. The program requires drug testing for public transportation employees responsible for safety- sensitive functions to be conducted preemployment, on reasonable suspicion, randomly, and post-accident. Reasonable suspicion, random, and post-accident test- ing for the use of alcohol in violation of law or a federal regulation must be conducted for such employees; pre- employment alcohol testing is at the discretion of the public transportation operator. Section 5331 also au- thorizes the Secretary of Transportation to require pe- riodic recurring testing of public transportation em- ployees responsible for safety-sensitive functions for the use of alcohol or a controlled substance in violation of law or government regulation. Post-accident testing is mandatory for any fatal accident involving public transportation. FTA implements § 5331 through its regulation on Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations.54 These requirements apply to employers that receive financial assistance from FTA and to contractors of those employers. FTA’s Master Grant Agreement requires that grantees agree to com- ply with Part 655.55 The Master Grant Agreement also 49 For a more extensive discussion of these requirements, see ROBERT A. HIRSCH, DRUG AND ALCOHOL TESTING—A SURVEY OF LABOR-MANAGEMENT RELATIONS 46 (National Cooperative Highway Research Program, Transit Cooperative Research Program, Legal Research Digest No. 16, 2001). 50 102 Pub. L. No. 143, § 6, 105 Stat. 952, Oct. 28, 1991. 51 49 C.F.R. pt. 40, www.access.gpo.gov/nara/cfr/waisidx_ 09/49cfr40_09.html. 52 49 C.F.R. pt. 382, Controlled substances and alcohol use and testing, www.access.gpo.gov/nara/cfr/waisidx_09/ 49cfr382_09.html; 49 C.F.R. pt. 655, Prevention of alcohol mis- use and prohibited drug use in transit operations, www.access.gpo.gov/nara/cfr/waisidx_09/49cfr655_09.html. 53 49 C.F.R. pt. 219, Control of alcohol and drug use. www.access.gpo.gov/nara/cfr/waisidx_08/49cfrv4_08.html. 54 49 C.F.R. pt. 655. 55 FTA Master Agreement MA(16), 10-1-2009, § 32. Sub- stance Abuse, at 59, www.fta.dot.gov/documents/16-Master.pdf. requires compliance with the FMCSA’s drug and alco- hol testing requirements, to the extent that the FMCSA requirements are applicable.56 The FMCSA regulation only applies to CDL holders and specifically excepts employers and drivers required to comply with Part 655,57 although individual CDL holders are subject to FMCSA sanctions and other ramifications for violating FMCSA drug and alcohol testing requirements that were not included in the FTA regulation.58 The requirements of the USDOT, FMCSA, FRA, and FTA drug and alcohol testing regulations are discussed below. Transit agency drug and alcohol testing policies, as well as legal challenges to employee drug and alcohol testing under the regulations, are also discussed. 1. DOT Regulation The USDOT regulation covers all parties who con- duct drug and alcohol tests required by USDOT’s agen- cies and specifies the procedures that must be used in conducting those tests. Important substantive require- ments include: the employer is responsible for compli- ance with the regulation, including the actions of its agents in conducting testing;59 employers must immedi- ately remove employees from safety-sensitive functions upon receiving a positive drug test result;60 employers must check on an employee’s drug and alcohol testing record before allowing the employee to begin safety- sensitive job functions;61 and employers must direct a collection under direct observation of an employee when there are unexplained irregularities in the test results and if the drug test is a return-to-duty test or a follow- This section also requires compliance with drug-free workplace requirements, which do not directly mandate drug testing. 56 Id. at 60. See ICF INTERNATIONAL, FMCSA REGULATIONS AS THEY APPLY TO FTA SECTION 5310/5311 PROVIDERS: A HANDBOOK (National Cooperative Highway Research Program, Research Results Digest 311, 2006), http://onlinepubs.trb.org /onlinepubs/nchrp/nchrp_rrd_311.pdf. 57 49 C.F.R. § 382.103(d)(1). The requirements of 49 C.F.R. pt. 382 and pt. 655 are substantially similar, but not identical. See FTA and FMCSA D&A Regulatory Comparison, http://transit-safety.volpe.dot.gov/publications/substance/ ImplementationGuidelines/Revisions/Chapter_2.pdf. 58 Federal Transit Administration, Implementation Guide- lines for Drug and Alcohol Regulations in Mass Transit, Nov. 2003, at 2–3, http://transit-safety.fta.dot.gov/publications/ substance/ImplementationGuidelines/Implementation Guidelines_rev_11_2003.pdf. 59 49 C.F.R. § 40.11, What are the general responsibilities of employers under this regulation? http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/49cfr40.5.pdf. 60 49 C.F.R. § 40.23, What actions do employers take after receiving verified test results?, http://edocket.access.gpo.gov/ cfr_2008/octqtr/pdf/49cfr40.23.pdf. 61 49 C.F.R. § 40.25, Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?, http://edocket.access.gpo. gov/cfr_2008/octqtr/pdf/49cfr40.25.pdf.

11 up test.62 The USDOT regulation leaves to the modal administration’s discretion whether to allow an em- ployee’s supervisor to act as a collection agent if no other collector is available; FTA’s regulation does not allow such collection.63 In 2008, USDOT revised its regulation to make specimen validity testing mandatory within the regu- lated transportation agencies.64 As part of that revision, USDOT included the requirement for direct observation for return-to-duty and follow-up tests noted above. After extending the effective date of the final rule and re- questing comments on the requirement for direct obser- vation for return-to-duty and follow-up tests,65 USDOT issued a notice responding to comments and providing an effective date of November 1, 2008.66 However, the District of Columbia Circuit Court of Appeals stayed the effective date while it reviewed a constitutional challenge to the case, at which point USDOT returned to the previous requirement.67 Following the court’s de- cision upholding the regulatory change, USDOT rein- stated the direct observation requirement.68 2. FMCSA Regulation The FMCSA regulation on controlled substances and alcohol use and testing applies to all persons subject to the CDL requirements of 49 C.F.R. Part 383, except, as noted above, employers and drivers subject to FTA’s regulation. Since the FMCSA regulation is focused on the CDL holder rather than a broader group of employ- 62 49 C.F.R. § 40.67, When and how is a directly observed collection conducted?, http://edocket.access.gpo.gov/cfr_2008/ octqtr/pdf/49cfr40.67.pdf. 63 49 C.F.R. § 655.53, Supervisor acting as collection site personnel. 64 U.S. Department of Transportation, Office of the Secre- tary, Final Rule, 49 C.F.R. pt. 40, Procedures for Transporta- tion Workplace Drug and Alcohol Testing Programs, 73 Fed. Reg. 35961, June 25, 2008, http://edocket.access.gpo.gov/2008/ pdf/E8-14218.pdf. 65 U.S. Department of Transportation, Office of the Secre- tary, Change in effective date; request for comments, 49 C.F.R. pt. 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 73 Fed. Reg. 50223, Aug. 26, 2008, http://edocket.access.gpo.gov/2008/pdf/E8-19816.pdf. 66 U.S. Department of Transportation, Office of the Secre- tary, Response to comments, 49 C.F.R. pt. 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 73 Fed. Reg. 62910, Oct. 22, 2008, http://edocket.access.gpo.gov/2008/pdf/E8-25102.pdf. 67 U.S. Department of Transportation, Office of the Secre- tary, Final Rule, 49 C.F.R. pt. 40, Procedures for Transporta- tion Workplace Drug and Alcohol Testing Programs, 73 Fed. Reg. 70283, Nov. 20, 2008, http://edocket.access.gpo.gov/2008/pdf/E8-27617.pdf. 68 U.S. Department of Transportation, Office of the Secre- tary, Final Rule, 49 C.F.R. pt. 40, Procedures for Transporta- tion Workplace Drug and Alcohol Testing Programs, 74 Fed. Reg. 37949, July 30, 2009, http://edocket.access.gpo.gov/2009/ pdf/E9-18156.pdf. See BNSF Railway Co. v. Dep’t of Transp., 566 F.3d 200 (D.C. Cir. 2009). ees, certain of the FMCSA requirements differ from corollary requirements under the FTA requirement. For example, the thresholds for testing employees other than the driver in a fatal accident and for testing em- ployees in a nonfatal accident are less rigorous under the FMSCA regulation. In addition, the FMCSA does not provide for suspension of federal funding in the event of noncompliance with the regulation. 3. FRA Regulation The FRA regulation applies to railroads that operate rolling equipment on standard gauge track that is part of the general railroad system of transportation and railroads that provide commuter or other short-haul rail passenger service in a metropolitan or suburban area.69 Unlike the FMCSA regulation, the FRA regula- tion does not explicitly except agencies that are subject to FTA’s drug and alcohol testing regulation. However, transit agencies that adhere to the FTA’s drug policy may petition the FRA for a waiver from the require- ments of Part 219.70 The regulation requires mandatory hearing procedures that must be followed if an em- ployee contests the validity of test results.71 The regula- tion requires testing under the following circumstances: • Preemployment (including transfer to a safety- sensitive position within the organization) (alcohol test- ing not required). • Reasonable suspicion (mandatory based on “spe- cific, contemporaneous, articulable observations con- cerning the appearance, behavior, speech, or body odors of the employee;”72 reasonable-cause testing authorized but not required under specified circumstances73). • Random (program must be approved by FRA). • Post-accident (based on good-faith determination of on-scene railroad representative that incident falls within parameters for required testing).74 • Return-to-duty/follow-up (periodic). 4. FTA Regulation FTA’s regulation governing drug and alcohol test- ing75 requires testing of safety-sensitive employees in five circumstances: • Preemployment (including transfer to a safety- sensitive position within the organization) (alcohol test- ing not required). • Reasonable suspicion. 69 49 C.F.R. § 219.3(a). Exceptions are set forth in §§ 219.3(b) and 219.3(c). 70 http://edocket.access.gpo.gov/2003/pdf/03-24744.pdf; http://edocket.access.gpo.gov/2007/pdf/E7-15140.pdf. 71 49 C.F.R. § 219.107(d). 72 49 C.F.R. §§ 219.300(a)(1) and (2). 73 49 C.F.R. § 219.301. 74 49 C.F.R. § 219.201(c)(ii). 75 49 C.F.R. pt. 655.

12 • Random. • Post-accident. • Return-to-duty/follow-up (periodic). The regulation requires removing any safety- sensitive employee who violates the rule (by testing positive for illegal drug use, alcohol misuse, or other- wise) from that position and informing the employee of treatment options. The regulation leaves to transit agency policy whether to terminate the employee or retain the employee subject to treatment. As discussed below, such decisions must be consistent with state law and collective bargaining agreements. The regulation defines “safety sensitive” according to duties, rather than positions. The following functions are defined as safety-sensitive:76 • Operating a revenue service vehicle, including when not in revenue service. • Operating a nonrevenue service vehicle, when re- quired to be operated by a holder of a CDL. • Controlling dispatch or movement of a revenue service vehicle. • Maintaining (including repairs, overhaul, and re- building) a revenue service vehicle or equipment used in revenue service. This section does not apply to the following: an employer who receives funding under 49 U.S.C. § 5307 or § 5309, is in an area less than 200,000 in population, and contracts out such services; or an employer who receives funding under 49 U.S.C. § 5311 and contracts out such services. • Carrying a firearm for security purposes. Transit agencies are responsible for determining which of their positions are subject to the regulation based on the definition of “safety-sensitive functions.” For example, Community Transit in Everett, Washing- ton, has included customer and community relations and training positions, as well as several management positions in maintenance and transportation, in its des- ignated safety-sensitive positions.77 The Los Angeles 76 49 C.F.R. § 655.4. 77 The specific safety-sensitive positions are: • Customer and Community Relations • Director of Marketing and TMS. • Education Coordinator. • Manager of Transportation Management Services. • Supervisor of Vanpool. • Vanpool Coordinator. • Maintenance • Apprentice Body Person. • Apprentice Mechanic. • Assistant Facilities and Automotive. • Maintenance Manager. • Assistant Maintenance Shop Manager. • Director of Maintenance. • Journey Body Person. County Metropolitan Transportation Authority (LA Metro) classifies almost 90 job classifications as safety sensitive.78 A recipient that fails to establish a drug and alcohol testing program under the FTA regulation may not be eligible to receive federal financial assistance under Chapter 53 or 23 U.S.C. § 103(e)(4). FTA may suspend a recipient’s eligibility for federal funding if the recipient fails to certify compliance with the regulatory require- ments. Misrepresentations concerning drug and alcohol testing may subject a recipient to criminal sanctions and fines under 18 U.S.C. § 1001.79 Grant recipients are required to retain records as specified under Subpart H of the regulation, ranging from 1 year for negative test results to 5 years for posi- • Journey Mechanic (Includes Component Rebuild and Automotive Mechanics). • Lead Journey Body Person. • Lead Journey Mechanic (Includes Component Re- build and Automotive Mechanics). • Lead Vehicle Service Attendance. • Maintenance Shop Manager. • Manager of Facilities Shop/Maintenance. • Manager of Maintenance. • Vehicle Service Attendant. • Vehicle Service Worker. • Transportation • Assistant Transportation Manager. • Chief Operations Officer. • Coach Operator (full-time, part-time, and trainee). • Contract Services Coordinator. • Director of Transportation. • Dispatcher. • Manager of Contracted Services. • Manager of Transportation. • Manager of Transportation Administration. • Operations Supervisor. • Security Officer. • Training • Instructor. • Supervisor of Training. • Manager Risk and Training. • Other • Schedule Analyst. Community Transit’s Drug and Alcohol Abuse Policy, App. A, www.commtrans.org/About/Documents/Purchasing/RFP% 20%2332-08%20Exhibit%20D.pdf (accessed Oct. 28, 2009). Cf., Clemson Area Transit: all drivers, all mechanics; all dispatch- ers/schedulers; transportation director; maintenance director. Clemson Area Transit Substance Use, Abuse and Testing Pol- icy, Sept. 4, 2006, www.cityofclemson.org/files/090406Item DrugAlcoholPolicy.pdf (accessed Oct. 28, 2009). 78 Metro Alcohol-and-Drug-Free Work Environment Policy (HR 4-2), App. A. 79 49 C.F.R. § 655.82, Compliance as a condition of financial assistance, http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/ 49cfr655.82.pdf.

13 tive test results. Records must be retained in a secure location with controlled access. 5. State Testing Requirements In a 2001 survey, 35 transportation carriers sur- veyed on drug and alcohol testing practices responded that they were subject to state testing laws, identifying the following states: Arizona, California, Connecticut, Florida, Iowa, Louisiana, Maine, Maryland, Minnesota, New York, Ohio, Pennsylvania, South Carolina, and Wisconsin. A number of state and local governments have mandatory requirements that must be followed in conducting drug testing.80 FMCSA and FTA testing re- quirements preempt state and local requirements if it is not possible to comply with both the federal and state/local requirements or if the state or local require- ments pose an obstacle to executing the federal re- quirement.81 FRA testing requirements preempt state and local requirements “covering the same subject mat- ter” as the FRA regulation, except for a state or local law “directed at a local hazard that is consistent with [Part 219] and that does not impose an undue burden on interstate commerce.”82 State law may also specify the notice that must be provided to employees on test results and restrict the disciplinary action that a transit agency may take if an employee tests positive.83 Failure to comply may result in damages and/or injunctive relief.84 6. Judicial Review of Drug and Alcohol Testing Regulations (Preemption and Collective Bargaining) Preemption.—The First Circuit Court of Appeals re- jected a preemption challenge to the FTA drug testing requirements, holding that where Congress places con- ditions on receipt of federal dollars and an entity ac- cepts federal funding, the Supremacy Clause requires that the federal requirements take precedence over con- flicting local law, whether statutory or constitutional.85 80 HIRSCH, supra note 49, at 36. 81 49 C.F.R. §§ 382.109, 655.6. 82 49 C.F.R. § 219.13. 83 E.g., Minnesota: MINN. STAT. § 181.953, www.revisor.mn.gov/statutes/?id=181.953 (notice), MINN. STAT. § 181.953, www.revisor.mn.gov/statutes/?id=181.953 (prohibits employer from taking disciplinary action based on preliminary screening test that has not been confirmed, requires employer to afford employees who test positive opportunity to participate in drug or alcohol counseling or rehabilitation program before discharging based on first positive (confirmed) test result); Montana: Montana Workforce Drug and Alcohol Testing Act, MONT. CODE ANN. §§ 39-2-205 through 39-2-211, http://data.opi.mt.gov/bills/mca_toc/39_2_2.htm (sets criteria for testing programs; affords employees right of rebuttal; limits adverse actions). 84 E.g., MINN. STAT. § 181.956, www.revisor.mn.gov/statutes/?id=181.956. 85 O’Brien v. Mass. Bay Transp. Auth., 162 F.3d 40 (1st Cir. 1998). See Byrne v. Mass. Bay Transp. Auth., 196 F. Supp. 2d 77 (D. Mass. 2002) (holding state claim is preempted to extent The court also rejected the plaintiffs’ argument that the MBTA should be precluded from accepting federal funds, because accepting funding leads to a conflict with state law concerning drug testing. Finally, the court rejected the argument that the MBTA’s testing policy was illegal because it exceeded the federal require- ments, holding that so long as the transit agency’s test- ing requirements did not conflict with FTA’s testing protocol, they violate neither state or federal law. Collective bargaining.—The Southwest Ohio Re- gional Transit Authority (SORTA) implemented the federal drug testing requirements with a zero tolerance policy, which required terminating any employee who tested positive for use of a controlled substance. How- ever, SORTA had negotiated a collective bargaining agreement with the Amalgamated Transit Union pro- viding that discharge, suspension, or other disciplinary action could only be with sufficient cause. The union contested the automatic termination of an employee who had tested positive for use of a controlled sub- stance. The arbitration panel determined that the automatic discharge requirement conflicted with, and therefore violated, the collective bargaining agreement. An Ohio appellate court reversed, holding that reinstat- ing the employee violated public policy. The Ohio Supreme Court found that SORTA did not have the right to unilaterally adopt an automatic ter- mination as a sanction for testing positive because that would conflict with the negotiated sufficient-cause re- quirement, which would undermine the collective bar- gaining process. Accordingly the court held that the finding of the arbitration panel was based on the suffi- cient-cause standard, and so drew its essence from the collective bargaining agreement and was not arbitrary or capricious. The court also found that Ohio law did not preclude providing a second chance to someone who had tested positive for a controlled substance. The court reviewed Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17,86 in which the U.S. Supreme Court reviewed the Omnibus Testing Act and deter- mined that it did not establish public policy against reinstating employees who had tested positive for use of a controlled substance. Relying on the facts that Ohio had adopted the requirements of Part 382 and had no other law or legal precedent requiring termination, the court held that Ohio had “no dominant and well-defined public policy that renders unlawful an arbitration award reinstating a safety-sensitive employee who was terminated for testing positive for a controlled sub- stance, assuming that the award is otherwise reason- transit agency policy implements federal mandate of random drug testing of safety-sensitive employees of federal mass transportation grant recipients; differences from federal law permissible so long as there is no conflict). See also Keaveney v. Town of Brookline, 937 F. Supp. 975 (D. Mass. 1996) (Federal CDL regulations requiring drug and alcohol testing preempt Massachusetts Declaration of Rights, Massachusetts Privacy Act, and Massachusetts Civil Rights Statutes). 86 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000).

14 able in its terms for reinstatement.”87 Finally, the court held that given the employee’s record, the terms of rein- statement were reasonable, so the reinstatement award did not violate public policy. B. Commercial Driver’s License/Medical Requirements 1. Federal Requirements The general provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) specifically exempt transportation performed by the federal government, a state, or any political subdivision of a state from the regulations.88 However, this exemption does not apply to the CDL requirements in Part 383.89 Moreover, the CDL requirements are not limited to drivers in interstate commerce.90 Rather, the requirements apply to any driver who operates a commercial vehicle, whether in interstate or intrastate operation, providing they drive on a public road. Accordingly, the CDL requirements do not apply to transit hostlers (public transit employees who maintain and park transit buses on transit system property) unless they drive vehicles on public roads.91 In addition, Section 33 of the FTA Master Agreement re- quires recipients of FTA funding to comply with FMCSA’s CDL standards. The government exemption noted above does cover the driver qualification requirements, including medical requirements, of 49 C.F.R. Part 391.92 Moreover, Part 391 only applies to drivers of CMVs in interstate com- merce, although many states adopt these requirements for their own CDLs.93 The physical qualifications provisions of Part 391 set forth disqualifying physical conditions and establish 87 Sw. Ohio Reg’l Transit Auth. v. Amalgamated Transit Un- ion, Local 627, 91 Ohio St. 3d 108, 115, 742 N.E.2d 630, 636 (2001). 88 49 C.F.R. § 390.3(f)(2). 89 Question 10, www.fmcsa.dot.gov/rules-regulations/ administration/fmcsr/fmcsrruletext.aspx?chunkKey= 090163348002325f. 90 49 U.S.C. § 383.3. 91 Question 15, www.fmcsa.dot.gov/rules-regulations/ administration/fmcsr/fmcsrruletext.aspx?chunkKey= 0901633480023236. 92 Part 391: Qualifications of drivers and longer combination vehicle (LCV) driver instructors, www.fmcsa.dot.gov/rules- regulations/administration/fmcsr/ fmcsrguidedetails.aspx?menukey=391. Medical requirements are in 49 C.F.R. § 391.41, www.fmcsa.dot.gov/rules- regulations/administration/medical.htm. See FMCSA Medical Programs, www.fmcsa.dot.gov/rules-regulations/topics/medical medical.htm. See also ICF INTERNATIONAL, supra note 56, at 3–4. 93 For example, in responding to the report questionnaire, Alabama, Idaho, Indiana, Iowa, Louisiana, Maryland, Minne- sota, Nevada, and New Jersey indicated that transit employees [either specifically or as part of larger group that could be ex- pected to include transit employees] must meet the require- ments of 49 C.F.R. § 391.41. vision and hearing requirements. The regulation also provides for alternative physical qualification standards for individuals with loss or impairment of limbs based on a skill performance evaluation.94 In addition, under 49 U.S.C. § 31136(e) and § 31315, FMCSA may grant an exemption for a 2-year period if it finds such exemption “would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The FMCSA grants exemp- tions to its requirements for vision, diabetes, and epi- lepsy. The 2005 transit reauthorization legislation con- tained a provision prohibiting both applying higher physical standards for insulin-treated people than other applicants, except as medically necessary under FMCSA regulations, and requiring insulin-treated ap- plicants for an exemption to have experience operating CMVs while using insulin, although such applicants must demonstrate stable control of their diabetes before operating a CMV in interstate commerce.95 The Gov- ernment Accountability Office recently critiqued the medical certification process, finding some evidence of fraud or medical examiners not familiar with medical fitness requirements.96 The FMCSRs do not require an examination when a driver returns from injury or illness unless the injury or illness has impaired the driver’s ability to perform his or her normal duties, although the motor carrier may require a driver returning from any illness or injury to take a physical examination. But, in either case, the motor carrier has the obligation to determine if an in- jury or illness renders the driver medically unquali- fied.97 This obligation can be fulfilled while still meeting requirements of the ADA, infra. FMCSA’s medical board has recommended obstructive sleep apnea screen- ing, but this requirement has not yet been adopted.98 2. State Requirements State requirements for CDL waivers for intrastate drivers may be less rigorous than the federal waiver requirements.99 Otherwise, state CDL standards gener- ally mirror those of the FMCSA, including medical re- 94 Skill Performance Evaluation (SPE), www.fmcsa.dot.gov/rules-regulations/topics/medical/ spepackage.htm. 95 109 Pub. L. No. 59, 119 Stat. 1742, § 4129, Operation of commercial motor vehicles by individuals who use insulin to treat diabetes mellitus, Aug. 10, 2005. 96 U.S. GOVERNMENT ACCOUNTABILITY OFFICE, COMMERCIAL DRIVERS: CERTIFICATION PROCESS FOR DRIVERS WITH SERIOUS MEDICAL CONDITIONS 10 (2008), www.gao.gov/new.items/d08826.pdf. 97 Interpretation for Part 391.45: Qualifications of drivers and LCV driver instructors, www.fmcsa.dot.gov/rules-regula tions/administration/fmcsr/fmcsrruletext.aspx?chunkKey=0901 633480023273. 98 www.mrb.fmcsa.dot.gov/documents/FINALJul109_ MRB_Meet_Sum_101409.pdf. 99 E.g., [Oregon] CDL Medical Examination & Physical Qualifications, www.oregon.gov/ODOT/DMV/driverid/cdlmedex.shtml.

15 quirements.100 However, there is a distinction between Federal CDL requirements and state requirements for a passenger endorsement. For example, a driver may ob- tain a vision waiver from FMCSA and yet be denied a passenger endorsement from the state motor vehicle administration.101 Maryland also does not allow passen- ger endorsements to individuals who require a CDL intrastate waiver.102 California also prohibits drivers who do not meet the medical requirements of Section 391.41 from driving buses;103 the FMCSA has taken the position that even if the FMCSA issues an exemption, a state is free to issue a restricted CDL.104 Wisconsin, on the other hand, allows municipal bus drivers to obtain a 100 States that have adopted Part 383 and/or Part 391 in whole or in part include Alabama (has adopted entire Federal Commercial Motor Vehicle Safety Act of 1986), http://dps.alabama.gov/DriverLicense/FAQ.aspx#anchor851895 ), www.dps.state.al.us/DriverLicense/FAQ.aspx#anchor8518 95; Illinois (incorporates by reference requirements of 49 C.F.R. pts. 382, 383, and 391. 625 ILL. COMP. STAT. 5/18b105, www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1815&ChapAct= 625%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=49&Ch apterName=VEHICLES&ActName=Illinois+Vehicle+Code %2E); Iowa (adopted 49 C.F.R.§ 391.11, IOWA ADMIN. CODE 761—607.10 (321, www.legis.state.ia/us/aspx/ACODocs/DOCS/ 05-06-2009.761.pdf); Massachusetts (has adopted Part 491, applies to both rail and bus operators, MBTA response to Re- port Questionnaire); Missouri (has adopted 49 C.F.R. pts. 390 through 397 as state law, http://dor.mo.gov/mvdl/drivers/dlguide/chapter15.pdf); Nevada (requirements for CDLs may not be more stringent than those under federal law. NEV. REV. STAT. 483.908 Adoption of regu- lations, www.leg.state.nv.us/NRS/NRS-483.html#NRS483Sec 908); New Jersey (defers to FMCSA requirements for physical fitness, www.state.nj.us/mvc/Commercial/Getting.htm); Ohio (requires all commercial drivers to meet minimum medical standards, http://www.bmv.ohio.gov/cdl.stm). 101 E.g., [Maryland] CDL Medical Waiver Information Packet, Requesting Interstate Waiver/Exemption, Requesting Intrastate Waiver, at 2, www.mva.maryland.gov/Resources/CDLWaiver.pdf. 102 E.g., id. at 4. 103 California notes that the rationale for CDL medical stan- dards is that these drivers have a more physically and men- tally demanding environment than other drivers, and their driving has public safety implications. In those rare instances when California makes an exception to the CDL medical re- quirements, the state issues a CDL restricted to intrastate driving and without a passenger or hazardous materials en- dorsement. California DMV Commercial Driver License Medi- cal Eligibility: Purpose of Higher Medical Standards: Commer- cial Driver License (CDL) Medical Requirement Exceptions, www.dmv.ca.gov/dl/driversafety/cdl_guidelines.htm #six_1. 104 Department of Transportation, Federal Motor Carrier Safety Administration, Notice of final disposition, Qualification of Drivers; Exemption Applications; Vision, 65 Fed. Reg. 77066, Dec. 8, 2000, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi ?dbname=2000_register&docid=00-31347-filed.pdf. passenger endorsement despite not meeting federal medical requirements.105 3. Judicial Review of Requirements Where an employer requires that employees meet requirements in excess of CDL requirements, appli- cants or employees who cannot meet the more stringent requirements may challenge such employment practices as violative of the ADA or state nondiscrimination stat- utes.106 Only two cases challenging the federal CDL re- quirements have reached the Supreme Court: Albert- sons, Inc. v. Kirkingburg107 and Murphy v. United Parcel Service, Inc.108 In Albertsons, the Court upheld the va- lidity of the FMCSA vision requirements; in Murphy, the Court held that the plaintiff was not disabled under the ADA, so that the validity of the regulation concern- ing hypertension was not reached. The Court did, how- ever, draw a distinction between being disabled and being not certifiable under the USDOT medical re- quirement. C. Occupational Safety and Health Requirements109 To the extent they are applicable to specific transit agencies, health and safety standards of the Federal OSHA110 may require that transit agencies conduct physical ability testing, such as respirator fit and hear- ing tests. OSHA’s recordkeeping requirements, to the extent they are applicable, will affect how a transit agency manages records of workplace injuries and ill- nesses. 1. Applicability to Transit Agencies OSHA has limited jurisdiction over local government agencies. Its jurisdiction over public transit agencies is limited to those agencies in states with state OSHA plans.111 As of October 2009, 25 states had OSHA- 105 Wisconsin Commercial Driver’s Manual, Vol. 1, Apr. 2009, § 1:6, www.dot.wisconsin.gov/drivers/docs/cdl-vol1.pdf. Wisconsin state medical standards vary from the federal stan- dards; for example, requiring visual acuity of 20/60 in the best eye. Id. 106 See III.A.2, Prohibitions Against Discrimination Based on Physical Disability, supra this digest. 107 527 U.S. 555, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999). Although Albertsons did not involve a facial challenge to the regulation itself (Gurley v. N.Y. City Transit Auth., Case No. 03-CV-1321 (FB), 2003 U.S. Dist. LEXIS 21844 (Dec. 5, 2003)), the case is considered to stand for the proposition that the CDL vision standard is not a per se violation of the ADA. 108 527 U.S. 516, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999). 109 See generally, 2 MARK A. ROTHSTEIN, CHARLES B. CRAVER, ELINOR P. SCHROEDER & ELAINE W. SHOBEN, EMPLOYMENT LAW, ch. 6, Occupational Safety and Health (4th ed. 2009). 110 29 C.F.R. pt. 1910, www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=S TANDARDS&p_toc_level=1&p_keyvalue=1910. 111 29 U.S.C. § 652(5). See www.osha.gov/fso/osp/index.

16 approved plans.112 Transit agencies in these states must meet health and safety standards that are at least as effective as those set forth by OSHA.113 Even in non- OSHA-plan states, state agencies may apply OSHA standards. Some state requirements are stricter than federal requirements.114 Transit agencies may also fol- low OSHA standards as a matter of agency policy.115 2. Specific Standards OSHA requires both preplacement exams and either annual or biannual exams for employees exposed (at specified levels) to a number of substances. Substances associated with such requirements that mechanics and various other transit personnel are typically exposed to include hazardous waste,116 asbestos,117 lead,118 chro- mium,119 benzene,120 bloodborne pathogens,121 and for- .html; www.osha.gov/pls/oshaweb/owadisp.show_document? p_table=INTERPRETATIONS&p_id=22439. 112 Those states are Alaska, Arizona, California, Connecti- cut, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Puerto Rico and the Virgin Islands also have OSHA-approved plans. State Occupational Safety and Health Plans, www.osha.gov/dcsp/osp/index.html. 113 29 C.F.R. pt. 1910, Occupational Safety and Health Stan- dards. 114 ROBERT J. MCCUNNEY, PAUL P. ROUNTREE, DEBRA CHERRY, SHARON DAVIS, JEFFREY LEVIN, LARRY K. LOWRY, J. TOREY NALBONE, BARBARA PINSON & ELLEN REMENCHIK, OCCUPATIONAL AND ENVIRONMENTAL MEDICINE: SELF- ASSESSMENT REVIEW 10 (2004). 115 E.g., Dallas Area Rapid Transit (DART), DART response to report questionnaire, § IV.A., Tests and standards for cur- rent employees: In general. 116 29 C.F.R. § 1910.120, Hazardous waste operations and emergency response, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.120. pdf. 117 29 C.F.R. § 1910.1001, Asbestos, www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=S TANDARDS&p_id=9995; § 1926.1101 Asbestos [construction], http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1926.110 1.pdf. Medical surveillance may also be required. Medical sur- veillance guidelines for asbestos—Non-Mandatory—1910.1001 App. H, www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=S TANDARDS&p_id=10003. 118 29 C.F.R. § 1910.1025, Lead, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.102 5.pdf. 119 29 C.F.R. § 1910.1026, Chromium (VI), http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.102 6.pdf. 120 29 C.F.R. § 1910.1028, Benzene, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.102 8.pdf. 121 29 C.F.R. § 1910.1030, Bloodborne pathogens, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.103 0.pdf. maldehyde.122 In particular, a wide range of transit posi- tions—such as bus servicers, motor cleaners, painters, trackmen, bus repairers, and machinists—may be sub- ject to pulmonary function tests.123 Such tests are re- quired for employees exposed (at specified levels) to asbestos, formaldehyde, and hazardous waste; who work in permit-required confined spaces124 (essentially potentially hazardous confined spaces); and who must wear respirators.125 In addition to occupational standards for specific hazards, OSHA has a respirator protection program. Under this program OSHA requires the use of respira- tors “when such equipment is necessary to protect the health of the employee.”126 For example, transit agencies that have areas where concentrations of asbestos meet the threshold for OSHA regulation must provide respi- rators to each person who enters the regulated area.127 The standard requires a respiratory protection program that includes medical evaluations of employees required to use respirators and fit-testing procedures for tight- fitting respirators to ensure that employees whose jobs require respirators can safely wear them. The seal check can only be conducted if there is no facial hair between the skin and the facepiece sealing surface. The test includes prescribed exercises, such as breathing, head movements, and bending.128 OSHA also requires preplacement and annual hear- ing exams for employees exposed to sound levels exceeding those specified in the regulation.129 Positions that may require hearing tests include bus servicers, motor cleaners, painters, trackmen, bus repairers, and machinists.130 122 29 C.F.R. § 1910.1048, Formaldehyde, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.104 8.pdf. 123 E.g., Chicago Transit Authority Medical Testing Re- quirement Sheet, provided in response to Physical Ability Questionnaire. 124 29 C.F.R. § 1910.146, Permit-required confined spaces, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.146. pdf. 125 29 C.F.R. § 1910.134, Respiratory protection, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.134. pdf. 126 29 C.F.R. § 1910.134(a)(2). 127 29 C.F.R. § 1910.1001, Asbestos, www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=S TANDARDS&p_id=9995. 128 App. A to § 1910.134: Fit Testing Procedures (Manda- tory), www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=S TANDARDS&p_id=9780. 129 29 C.F.R. § 1910.95, Occupational noise exposure, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1910.95.p df. 130 E.g., Chicago Transit Authority Medical Testing Re- quirement Sheet, provided in response to Physical Ability Questionnaire.

17 3. Recordkeeping Requirements Records must be kept of workplace injuries and ill- nesses.131 In particular, employers must record work- related injuries and illnesses on an OSHA Form 301: Injury and Illness Incident Report or an equivalent form. These include injuries and illnesses resulting in loss of consciousness, days away from work, restricted work activity or job transfer, or medical treatment be- yond first aid.132 This incident report form could be used as a trigger for assessing the need for a fitness-for-duty exam.133 OSHA also requires the employer to protect the pri- vacy of the ill or injured employee in recording illnesses and injuries.134 Moreover, OSHA directly addresses the confidentiality of employee medical records in its regu- lations.135 However, OSHA workplace injury and illness records must be made available to OSHA representa- tives.136 The “other federal laws” defense should be available to any claim of a violation of ADA confidenti- ality requirements for providing records to authorized representatives pursuant to 29 C.F.R. § 1904.40. D. School Bus Drivers States generally require additional school bus en- dorsements, but not necessarily anything that requires physical ability tests in addition to the required CDL physical exam.137 States may have quite specific physi- 131 29 C.F.R. pt. 1904—Recording and Reporting Occupa- tional Injuries and Illnesses, www.access.gpo.gov/nara/cfr/waisidx_09/29cfr1904_09.html. 132 OSHA Forms for Recording Work-Related Injuries and Illnesses, www.osha.gov/recordkeeping/OSHArecordkeepingforms.pdf. 133 Of the 14 transit agencies that responded to the report questionnaire, only the MBTA and CTA indicated that fitness for duty exams are required after any incident that results in an OSHA 301 incident report (or equivalent state report). Such an exam does not, however, necessarily include functional physical ability testing. Response to question V.A., Source of requirements for conducting employee tests: In general. 134 29 C.F.R. § 1904.29(b)(6) through (10), http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1904.29.p df. 135 29 C.F.R. § 1913.10, Rules of agency practice and proce- dure concerning OSHA access to employee medical records, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1913.10.p df. 136 29 C.F.R. § 1904.40, Providing records to government representatives, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1904.40.p df. 137 E.g., Indiana, School Bus Endorsement, www.in.gov/dor/3418.htm, IND. CODE 20-9.1-3-1, Physical Fit- ness for School Bus Driver or School Bus Monitor, cited by Indiana Department of Revenue, Motor Carrier Services Divi- sion, Commercial Driver’s License Section, Instructions and Information for Physical Examination Forms of CDL Holders (Apparently SPE not available), www.in.gov/dor/files/4195. htm#cdl (click on CDL-PHY, State Form 49867 “Physical Ex- amination Form.”). cal condition requirements for school bus drivers. Penn- sylvania requires school bus operators to receive an annual physical examination administered by a school transportation physician, practical nurse, or physician’s assistant.138 Oregon’s requirements for a school bus en- dorsement appear to exceed Federal CDL require- ments.139 States may also have stricter drug and alcohol re- quirements for school bus drivers. For example, in Illi- nois a person who drives or is in actual physical control of a school bus or any other vehicle owned or operated by or for a public or private school is deemed to have given consent to a chemical test or tests of blood, breath, or urine for the purpose of determining the al- cohol content of the person's blood.140 New York also appears to impose some restrictions that are stricter than those under Federal CDL re- quirements. For example, New York State Department of Motor Vehicle Regulations mandate that an insulin- dependent diabetic who has had an incident of hypogly- cemic shock within 2 years is disqualified from driving school buses.141 Other restrictions include barring waiv- ers from Federal CDL requirements142 and requiring 138 67 PA. CODE § 71.3 (2005). 139 The requirements are: (i) No impairment of use of foot, leg, finger, hand or arm, or other structural defect or limitation, likely to interfere with safe driving or other responsibilities of a school bus driver. Drivers may be required to demonstrate ability to: open and close a manually operated bus entrance door control with a force of at least 30 pounds; climb and descend steps with a maximum step height of 17 1/2 inches; operate two hand controls simultane- ously and quickly; have a reaction time of 3/4 of a second or less from the throttle to the brake control; carry or drag a 125 pound person 30 feet in 30 seconds or less; depress a brake pedal with the foot to a pressure of at least 90 pounds; depress a clutch pedal with the foot to a pressure of at least 40 pounds unless op- erating an automatic transmission; exit from an emergency door opening of 24 x 48 inches at least 42 inches from the ground in ten seconds or less. Drivers must be physically able to open all emergency exits installed in any school bus they drive. OR. ADMIN. R. 581-053-0006, School Bus Driver Training and Certification (7)(d)(A), http://arcweb.sos.state.or.us/rules/OARS_500/OAR_581/581_05 3.html. However, these requirements do not appear to apply to drivers of public transit who transport students on a nonexclu- sive basis. School Bus Endorsement, www.oregon.gov/ODOT/DMV/driverid/cdlendrest.shtml#PassR estr. 140 625 ILL. COMP. STAT. 5/6-106.1a., Cancellation of school bus driver permit; trace of alcohol, www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=062500050H Ch%2E+6&ActID=1815&ChapAct=625%26nbsp%3BILCS%26 nbsp%3B5%2F&ChapterID=49&ChapterName=VEHICLES&S ectionID=28511&SeqStart=71300000&SeqEnd=90150000& &ActName=Illinois+Vehicle+Code%2E. 141 Christopher v. Laidlaw Transit Inc., 899 F. Supp. 1224, 1226 (S.D.N.Y. 1995), citing N.Y. COMP. CODES R. & REGS. tit. 15, pt. 6, 6.11(b)(3). 142 E.g., Maryland: CDL Medical Waiver Information Packet, Requesting Interstate Waiver/Exemption, Requesting Intra- state Waiver, at 2, www.mva.maryland.gov/Resources/CDLWaiver.pdf.