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18 school bus drivers from age 65 onward to undergo an- absent legislative authority, extending the more rigor- nual medical exams.143 ous school bus requirements to bus and rail operators In general, it does not appear that specific physical as a matter of agency policy could raise issues under requirements for school bus drivers apply to transit disability discrimination law, as it appears the rationale operators. The only federal requirement specific to for the more rigorous requirements--extra care re- school bus drivers is that for a school bus endorse- quired for those who transport children--would not ment,144 which does not impose additional physical re- apply to transit operators not in a similar position of quirements beyond those for a CDL nor require physical trust. ability testing. Some states may specifically exclude vehicles operated by public transit agencies from the III. LEGAL RESTRICTIONS ON PHYSICAL ABILITY definition of school bus, thereby making additional re- TESTING quirements for school bus drivers inapplicable to transit bus operators who transport school children.145 In addi- USDOT requires that grant recipients not discrimi- tion, some states only require the school bus endorse- nate on the basis of disability in federally-funded grant 149 ment to drive a yellow school bus.146 programs. The Federal Transit Act, FTA's implement- ing regulations, and the Master Agreement all prohibit E. Transit Agency Policy employment discrimination based on characteristics Transit agencies may require physical ability tests that may be affected by physical ability testing, such as that are not mandated by federal or state law. Agencies gender, disability, or age.150 These USDOT/FTA statu- may require tests to screen out unqualified applicants147 tory and regulatory provisions mandate compliance and to reduce costs. with the Civil Rights Act of 1964, as amended; the ADA; To the extent that testing is based on federal or state and the Age Discrimination in Employment Act 151 requirements for certain levels of ability, transit agen- (ADEA). The nondiscrimination requirements of these cies may not allow employees to meet lesser standards. statutes affect the permissible scope of physical ability However, provided that they remain within the pa- testing. The Family and Medical Leave Act of 1993 rameters of nondiscrimination requirements, transit (FMLA)152 also may affect the permissible scope of a agencies themselves may set more stringent require- transit agency's actions concerning physical ability test- ments than under federal or state law. For example, an ing. Of these, issues concerning physical ability testing agency's own experience with accidents may lead it to follow federal requirements for CDL waivers rather than less stringent state waiver requirements. Exam- ples cited in response to the report questionnaire of going beyond FTA drug and alcohol testing include re- ment drug and alcohol testing for all job applicants; NYCT quiring preemployment alcohol testing, preemployment requires preemployment testing for titles not covered by FTA drug and alcohol testing for all positions, post-accident regulation and post-accident testing not covered by FTA regu- testing for accidents not covered by FTA regulations, lation. (Based on responses to question VII.4 of study ques- testing of safety-sensitive employees after an absence tionnaire). 149 from work of 30 consecutive calendar days, and a drug 49 C.F.R. pt. 27, Nondiscrimination on the basis of dis- 148 test with the periodic CDL physical exam. However, ability in programs or activities receiving federal financial assistance. www.access.gpo.gov/nara/cfr/waisidx_08/49cfr27_08.html. 143 CAL. VEH. CODE, 12517.2., Medical Examination Re- 150 Section 5332 of Title 49 prohibits discrimination based on quirements, http://dmv.ca.gov/pubs/vctop/d06/vctop/d06/ race, color, creed, national origin, sex, or age under a project, vc12517_2.htm. program, or activity receiving funding under ch. 53. FTA Circu- 144 49 C.F.R. 383.123, Requirements for a school bus en- lar C 4704.1, Equal Employment Opportunity Program Guide- dorsement, http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf lines for Grant Recipients, July 26, 1988, requires compliance /49cfr383.123.pdf. with Title VII of the Civil Rights Act of 1964, 145 E.g., The Pupil Transportation Act, Act 187 of 1990 www.fta.dot.gov/documents/FTAEEOProgramGuidelines.pdf. (Michigan), 257.1801 et seq., FTA's master grant agreement requires that grantees agree to www.legislature.mi.gov/documents/mcl/pdf/mcl-Act-187-of- comply with all applicable civil rights laws and regulations, 1990.pdf. including the requirements of Title VII and the ADA. FTA 146 E.g., Illinois Commercial Driver's License Study Guide, Master Agreement MA(16), supra note 55, at 3236. 151 4-B: School Bus Endorsement, at 60, 90 Pub. L. No. 202, 81 Stat. 602, Dec. 15, 1967, codified www.sos.state.il.us/publications/pdf_publications/dsd_cdl10. as 29 U.S.C. 621 et seq. pdf. 152 103 Pub. L. No. 3, 107 Stat. 6 147 EEOC, Employment Tests and Selection Procedures, www.dol.gov/whd/regs/statutes/fmla.htm, codified as 29 U.S.C. www.eeoc.gov/policy/docs/factemployment_procedures.html; 2601 et seq.; 29 C.F.R. pt. 825; Final Rule, 73 Fed. Reg. David E. Hollar, Physical Ability Tests and Title VII, 67 U. 67934 (Nov. 17, 2008), www.dol.gov/federalregister/PdfDisplay CHI. L. REV. 777, 78485 (2000). .aspx?DocId=21763 (accessed Dec. 2, 2008). See Health Bene- 148 E.g., Los Angeles County Metropolitan Transportation fits, Retirement Standards, and Workers' Compensation: Fam- Authority (LA Metro) requires preemployment alcohol testing ily and Medical Leave, www.dol.gov/Compliance/Guide/fmla. and drug test with periodic exam; MBTA requires preemploy- htm.