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

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