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3 APPLICATION OF PHYSICAL ABILITY TESTING TO CURRENT WORKFORCE OF TRANSIT EMPLOYEES By Jocelyn K. Waite Waite & Associates, Reno, Nevada I. INTRODUCTION employees, or both; which positions to include under the testing policy; which abilities to test in covered posi- tions; whether to utilize work sample tests or tests that A. Statement of the Problem measure the ability to perform required physical Physical assessments are accepted as a prerequisite movements, based on job analysis of required move- to employment in the transit industry, particularly for ments; whether to test broadly for the physical ability safety-sensitive job positions. Such assessments rou- to carry out essential functions of the job or to focus on tinely include vision and hearing tests for employees the physical ability to perform particular essential ma- required to hold a commercial driver's license (CDL), neuvers that have been tied to workplace injuries; drug and alcohol testing as mandated by federal regula- whether to test general physical fitness; and whether to tions, and hearing and spirometry tests required to set standards that exceed those that are required under meet health and safety standards. Less routine perhaps federal regulations or to extend required standards to are physical agility and work tests--whether to assess employees not covered by federal regulations. These compliance with federal standards or meet the re- issues arise in both a legal context and an operational quirements of a given job description--akin to those context. This digest addresses the legal context. commonly required for law enforcement officers and The digest is meant to provide transit agencies with firefighters, and tests to measure an employee's ability a solid foundation for conducting more jurisdiction- to perform movements required to carry out essential specific research and analyzing the legal risks and job functions. In addition, concerns about employee benefits of various approaches to physical ability test- health may lead transit agencies to consider imposing ing. The digest also provides examples of physical abil- lifestyle restrictions related to employee weight and off- ity testing, reported by transit agencies to the author or duty use of tobacco, including instituting physical test- described in secondary sources, that may be of particu- ing to measure compliance with those restrictions. Fi- lar interest given the apparent absence of industry-wide nally, employers may wish to require assessments of efforts to develop physical ability testing standards.2 physical ability, either through inquiries or actual test- The intent is to allow other transit agencies to apply the ing, when employees return to work after an injury or legal principles identified in the report to assess the prolonged absence. benefits and costs of instituting such testing, based on Any tests conducted to assess physical ability--as the transit agencies' own legal analysis and operational well as inquiries related to physical ability--are subject considerations. to limitations under federal and state law; violations of those requirements may result in liability under civil ing), as well as tests designed to test an individual's ability to rights and nondiscrimination statutes. Testing policies carry out discrete physical requirements as measured by a job must be structured to take such requirements into ac- analysis of essential functions of the job. This definition differs count. from the terminology of some industrial medicine profession- als. See e.g., Andrew S. Jackson, Types of Physical Performance 1. Purpose Tests, in THE PROCESS OF PHYSICAL FITNESS STANDARDS Developing a physical ability testing1 policy requires DEVELOPMENT 10102 (Stefan Constable, Barbara Palmer eds., determining whether to test job applicants, incumbent 2000), www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA495349& Location=U2&doc=GetTRDoc.pdf (accessed Oct. 27, 2009) (re- ferring to "physical ability tests" as measuring "basic fitness 1 The term "physical ability testing" is used in this report to components of aerobic capacity, body composition, strength, refer to any testing that purports to measure an individual's muscular endurance, and flexibility" to evaluate the individ- ability to perform the essential physical requirements of a job. ual's capacity to perform demanding work tasks and their The term is meant to incorporate both physical agility/work physical fitness, and to "work sample tests" as evaluating the tests (which the EEOC considers to measure the individual's individual's ability to perform specific work tasks). 2 ability to perform actual or simulated job tasks) and physical Cf., Efforts of firefighter associations to develop physical fitness tests (which the EEOC considers to measure an indi- ability standards. See I.B.2., Examples of Physical Ability Test- vidual's performance of physical tasks such as running or lift- ing, infra this digest.