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63 equally effective results, it is not permissible to use the ferred physician for CDL examinations to, for example, more discriminatory procedure, although if more than ensure consistency, streamline administrative re- one alternative is available the employer is not neces- sources, and reduce costs.556 sarily required to adopt the least discriminatory alter- native. Finally, physical ability tests must be required B. Considerations in Formulating Testing Policy of all similarly situated applicants or employees. Absent As a general matter, physical ability testing re- a BFOQ, it is not permissible to require physical ability quirements should not be developed based on someone's tests for groups of employees based on gender, disabil- idea of what makes sense, either in terms of the pur- ity, or age (and it is difficult to conceive of a transit po- pose of the test or actual test parameters. For example, sition with a gender-based BFOQ). Reasonable accom- a decision to require job applicants to meet require- modation should be provided unless the ability being ments in excess of those required by USDOT standards tested is the ability that is impaired for a particular should not be made lightly. Managers should not use applicant. physical ability tests that have not been appropriately In addition, a transit agency may consider increasing reviewed for validity and effectiveness. Transit agencies the requirements for physical testing already required should strongly consider requiring legal review and by law, such as vision and hearing testing. Such in- human resource input in the development of any physi- creased requirements could disproportionately affect cal ability tests. For example, determining the adverse disabled individuals or those age 40 or older. Such re- impact of a test is best made with knowledge of em- quirements must also be shown to be job related and ployment testing statistics. consistent with business necessity in order to avoid vio- As noted at the outset, it is beyond the scope of this lating the ADA. However, if the requirements are report to offer legal advice on structuring a physical shown to be based on a reasonable factor other than ability testing policy. However, this section does discuss age, they will not constitute an employment practice in matters that transit agencies may want to consider in violation of the ADEA. In addition, applying an age- structuring such a policy. Particular issues to consider based standard from another regulation to CDL holders include: can only be defended if age is a BFOQ for the job in Test purpose: The more attenuated the connection question.555 between the purpose of the test and specific measure- Although not necessarily directly implicating physi- ments of job performance, the more difficult it is to es- cal ability testing, the issue of return-to-work medical tablish that a test with disparate impacts under civil certifications is related. It is impermissible under the rights, disability, or age statutes is job related and con- ADA to require employees to be "100 percent healed" to sistent with business necessity. Thus the more general return to work. If the jurisdiction follows the Second purpose of ensuring a healthier--and thus more pro- Circuit ruling on the issue, a request for a diagnosis ductive and less costly--workforce may be achieved may only be allowed under the ADA as part of the re- with less legal risk by implementing various voluntary turn-to-work certification if the requirement is justified measures, such as providing dietary counseling and as a business necessity. Where courts apply this stan- offering incentives for achieving physical fitness.557 In- dard, it appears that such a requirement should be part creased training may be another approach to reducing of a uniform policy that has been shown to be required on-the-job injuries, thereby lowering workers' compen- for the group of employees to whom it is applied. The 558 sation claims. The legal risk of conducting tests to transit agency should be able to provide specific justifi- enforce lifestyle restrictions such as smoking bans or cation for the requirement--general allegations about maximum BMI measurements--assuming the tests are sick leave abuse are not likely to be sufficient. administered in a nondiscriminatory fashion--may de- A transit agency may also require a returning em- pend in large part on the purpose of the underlying re- ployee to undergo a medical examination if there is an strictions. If, for example, state law prohibits discrimi- objective reason, aside from the fact that the employee nating against employees based on nonwork activities, took medical leave, that the employee's medical condi- weight restrictions imposed for general health-related tion will adversely affect the employee's ability to per- reasons may be found to be illegal. On the other hand, form essential functions of the employee's job. The em- restrictions on BMI based on the connection between a ployer may require returning employees to demonstrate specified BMI threshold and obstructive sleep apnea that they have the physical ability to perform essential may be found to be job related and consistent with job functions. If such tests are not uniformly required, it is important to ensure that the decision to order such 556 tests is free from any appearance of being based on the Broadway v. United Parcel Serv., Inc., 499 F. Supp. 2d race, gender, or age of the employee. At least in the 992, 1002 (M.D. Tenn. 2007). 557 Middle District of Tennessee, the employer may be able Incentives should be structured so as not to violate to require employees to use the transit agency's pre- HIPAA. 558 Matthew Santoni, Port Authority Payout on Injury Claims Tops $3 Million, PITTSBURGH TRIBUNE-REVIEW, Oct. 555 See ADEA: Physical Exams, Informal Discussion Letter, 28, 2009, Dec. 20, 2004, _physical_exams.html (accessed Nov. 30, 2009). 0177.html (accessed Nov. 30, 2009).

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64 business necessity, at least for bus and rail operators. other agency.559 Clearly the test should not measure any In the event such testing is challenged on privacy abilities that are not actually job related. grounds, the purpose will be balanced against the in- If a test is implemented in response to incidents of trusiveness of the test, so tests grounded in the safety- on-the-job injury, it is important to evaluate its effec- related nature of the job subject to testing would be tiveness in actually reducing injury. easier to justify, as would tests that are conducted on Validation should be done according to generally ac- blood or urine already collected for another permissible cepted professional guidelines. Going with an approach purpose. because it "makes sense" does not meet legal stan- Preemployment vs. incumbent employee testing: dards.560 A key question is whether incumbent employ- There are clear differences between tests and inquiries ees can pass the test. If not, it is more difficult to estab- that are permissible under the ADA for job applicants lish that the abilities being tested are required for and those permissible for incumbent employees. In ad- successful job performance. dition to those differences under the ADA, there may be Alternatives: If a test has adverse impacts, the differences between job applicants and incumbent em- agency should consider whether there are alternative ployees in the due process owed for an adverse employ- tests that would select qualified candidates without the ment action, expectations of privacy, and rights under adverse impact. It may also be advisable to consider ERISA and HIPAA, with greater rights accruing to in- whether changing equipment configuration may obviate cumbent employees. If physical ability tests are re- the need for skills being tested for. For example, Pierce quired for job applicants but not incumbent employees, Transit in Washington has retrofitted all buses to ad- 561 applicants may challenge the tests on equal protection just to all possible operator heights. However, reason- grounds, although absent other factors such as race- or ableness of cost should be an issue, so changing buses to gender-based discrimination, it does not appear that provide an increased load rating on driver's seats for such challenges are likely to be sustained. overweight drivers may not be considered a reasonable Perhaps a greater legal risk of not testing incumbent alternative. employees is that an employee's physical inability to Cut-off scores: Cut-off scores should not be any perform essential job functions may lead to injury of higher than are necessary to ensure that personnel other employees or customers. For example, if a bus achieving those scores can do the job. An "expert opin- operator cannot secure a wheelchair properly because ion" not supported by professionally recognized methods the operator is unable to squat down, secure the wheel- such as norm-referenced, content-related, or criterion- chair, and get up again, such improper securement related methods will not be sufficient to substantiate could result in liability 1) if the person in the wheel- the cut-off score. Determining a cut-off score by averag- chair is unable to ride the bus, 2) if a disabled person is ing the score of employees already doing the job by injured because of improper securement, or 3) if an im- definition will exclude personnel who can do the job, properly secured wheelchair injures another passenger. thus failing to meet the legal standard. A transit agency may, of course, monitor such perform- Documentation: It is important to empirically docu- ance issues through methods other than testing, such ment the need for testing and the steps taken in devel- as supervisory inspections, passenger complaints, and oping the test to ensure compliance with legal require- mystery rides. However, such monitoring must be con- ments. For example, if a test is instituted to prevent on- ducted uniformly to prevent enforcement that is the-job injury, the agency should document the occur- deemed to rest on impermissible grounds, such as race rence of injury, the work behaviors that cause the in- or gender. It would be a question of fact as to whether jury, and the relationship of the test to the work behav- such monitoring was as reasonable a measure of super- vision as physical ability testing. 559 Brooks, supra note 174, at 30. Mr. Brooks notes: Testing method: The test should accurately measure [T]he strongest justification of the SEPTA standard is the re- the required ability. The more direct the connection quirement that SEPTA officers be able to run from one station between the test measurement and the on-the-job use of to another to back up another officer. The SEPTA studies noted that their officers are required to do this on a monthly basis. the ability, the more likely it will be that the method of Unless another agency can produce similar statistical evidence, measurement is accurate. the likelihood of justifying a similar physical standard under Validation: It is advisable to ensure that a screening any business necessity requirement remains highly unlikely. test is validated as soon as practicable. Once the em- (citation omitted). ployer has been sued, courts may be skeptical of valida- 560 Rather than determining that performing a police officer tion studies conducted to prove after the fact that the physical ability test in 90 seconds corresponded to the mini- test was job related and required by business necessity. mum level of ability required for successful job performance, If the test is one that has been used by other transit the City of Erie used a 90 seconds passing standard "because agencies, data should be available concerning the out- they believed that the City would be requiring a `medium' or comes at those agencies to help make adverse-impact `average' level of physical ability, and that seemed `fair' and determinations. However, relying on another agency's `the best way to go.'" United States v. City of Erie, 411 F. Supp. 2d 524, 555 (W.D. Pa. 2005). validation may not be sufficient unless the job require- 561 ments being validated are the same as those of the Washington State Transit Association HR Roundtable on Operator Recruiting Challenges and Solutions, Oct. 27, 2006,