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17 3. Recordkeeping Requirements cal condition requirements for school bus drivers. Penn- Records must be kept of workplace injuries and ill- sylvania requires school bus operators to receive an nesses.131 In particular, employers must record work- annual physical examination administered by a school related injuries and illnesses on an OSHA Form 301: transportation physician, practical nurse, or physician's Injury and Illness Incident Report or an equivalent assistant.138 Oregon's requirements for a school bus en- form. These include injuries and illnesses resulting in dorsement appear to exceed Federal CDL require- loss of consciousness, days away from work, restricted ments.139 work activity or job transfer, or medical treatment be- States may also have stricter drug and alcohol re- yond first aid.132 This incident report form could be used quirements for school bus drivers. For example, in Illi- as a trigger for assessing the need for a fitness-for-duty nois a person who drives or is in actual physical control exam.133 of a school bus or any other vehicle owned or operated OSHA also requires the employer to protect the pri- by or for a public or private school is deemed to have vacy of the ill or injured employee in recording illnesses given consent to a chemical test or tests of blood, 134 and injuries. Moreover, OSHA directly addresses the breath, or urine for the purpose of determining the al- confidentiality of employee medical records in its regu- cohol content of the person's blood.140 lations.135 However, OSHA workplace injury and illness New York also appears to impose some restrictions records must be made available to OSHA representa- that are stricter than those under Federal CDL re- tives. 136 The "other federal laws" defense should be quirements. For example, New York State Department available to any claim of a violation of ADA confidenti- of Motor Vehicle Regulations mandate that an insulin- ality requirements for providing records to authorized dependent diabetic who has had an incident of hypogly- representatives pursuant to 29 C.F.R. § 1904.40. cemic shock within 2 years is disqualified from driving 141 school buses. Other restrictions include barring waiv- D. School Bus Drivers ers from Federal CDL requirements142 and requiring States generally require additional school bus en- 138 67 PA. CODE § 71.3 (2005). dorsements, but not necessarily anything that requires 139 physical ability tests in addition to the required CDL The requirements are: 137 physical exam. States may have quite specific physi- (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 131 may be required to demonstrate ability to: open and close a 29 C.F.R. pt. 1904--Recording and Reporting Occupa- manually operated bus entrance door control with a force of at tional Injuries and Illnesses, least 30 pounds; climb and descend steps with a maximum step www.access.gpo.gov/nara/cfr/waisidx_09/29cfr1904_09.html. height of 17 1/2 inches; operate two hand controls simultane- 132 OSHA Forms for Recording Work-Related Injuries and ously and quickly; have a reaction time of 3/4 of a second or less Illnesses, from the throttle to the brake control; carry or drag a 125 pound www.osha.gov/recordkeeping/OSHArecordkeepingforms.pdf. person 30 feet in 30 seconds or less; depress a brake pedal with 133 the foot to a pressure of at least 90 pounds; depress a clutch Of the 14 transit agencies that responded to the report pedal with the foot to a pressure of at least 40 pounds unless op- questionnaire, only the MBTA and CTA indicated that fitness erating an automatic transmission; exit from an emergency door for duty exams are required after any incident that results in opening of 24 x 48 inches at least 42 inches from the ground in an OSHA 301 incident report (or equivalent state report). Such ten seconds or less. Drivers must be physically able to open all an exam does not, however, necessarily include functional emergency exits installed in any school bus they drive. physical ability testing. Response to question V.A., Source of OR. ADMIN. R. 581-053-0006, School Bus Driver Training requirements for conducting employee tests: In general. and Certification (7)(d)(A), 134 29 C.F.R. § 1904.29(b)(6) through (10), http://arcweb.sos.state.or.us/rules/OARS_500/OAR_581/581_05 http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1904.29.p 3.html. However, these requirements do not appear to apply to df. drivers of public transit who transport students on a nonexclu- 135 29 C.F.R. § 1913.10, Rules of agency practice and proce- sive basis. School Bus Endorsement, dure concerning OSHA access to employee medical records, www.oregon.gov/ODOT/DMV/driverid/cdlendrest.shtml#PassR http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1913.10.p estr. 140 df. 625 ILL. COMP. STAT. 5/6-106.1a., Cancellation of school 136 29 C.F.R. § 1904.40, Providing records to government bus driver permit; trace of alcohol, representatives, www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=062500050H http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1904.40.p Ch%2E+6&ActID=1815&ChapAct=625%26nbsp%3BILCS%26 df. nbsp%3B5%2F&ChapterID=49&ChapterName=VEHICLES&S 137 E.g., Indiana, School Bus Endorsement, ectionID=28511&SeqStart=71300000&SeqEnd=90150000& www.in.gov/dor/3418.htm, IND. CODE 20-9.1-3-1, Physical Fit- &ActName=Illinois+Vehicle+Code%2E. 141 ness for School Bus Driver or School Bus Monitor, cited by Christopher v. Laidlaw Transit Inc., 899 F. Supp. 1224, Indiana Department of Revenue, Motor Carrier Services Divi- 1226 (S.D.N.Y. 1995), citing N.Y. COMP. CODES R. & REGS. tit. sion, Commercial Driver's License Section, Instructions and 15, pt. 6, 6.11(b)(3). 142 Information for Physical Examination Forms of CDL Holders E.g., Maryland: CDL Medical Waiver Information Packet, (Apparently SPE not available), www.in.gov/dor/files/4195. Requesting Interstate Waiver/Exemption, Requesting Intra- htm#cdl (click on CDL-PHY, State Form 49867 "Physical Ex- state Waiver, at 2, amination Form."). www.mva.maryland.gov/Resources/CDLWaiver.pdf.