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66 D. Outlook for Employee Physical Ability Testing more defensible the test will be. Test design and valida- The primary obstacles to physical ability testing in- tion should be conducted by qualified professionals, not clude financial constraints, lack of proof of effective- by line management, and should be reviewed by agency ness, and concerns about legal liability. The effective- human resources and legal personnel. The employer, ness concern relates partly to expectations: if not a test vendor, is legally responsible for test validity. management expects a physical ability test to screen In addition, physical ability testing for positions covered out large numbers of job applicants, the types of tests by collective bargain agreements must be consistent that are currently in use (and probably those tests that with those agreements. would be legally supportable in the transit context) are Transit agencies may wish to implement physical not likely to meet expectations. If, however, tests are ability testing for employees returning from leave. Such expected to screen out those few individuals who lack testing must comply with prohibitions against disability the physical ability to perform essential functions of the discrimination: testing should be based on objective job, then physical ability tests may serve an important reasons to believe there is a question about an em- purpose. As one transit human resources professional ployee's ability to perform essential job functions, explained, avoiding one workers' compensation case by rather than on the fact that the employee took leave or screening out a job applicant who is physically unquali- on the employee's status of being disabled. As a related fied for the job is extremely cost effective. matter, inquiries concerning the reason for an em- The outlook for physical ability testing in general ployee's sick leave must conform to federal and state could improve if there were some industry-wide effort to law prohibiting discrimination based on disability and conduct operational case studies or develop basic proto- protecting the right to take sick leave. cols that transit agencies could evaluate and adopt for As a matter of actual practice, testing of job appli- their particular circumstances. Physical-ability testing cants appears more prevalent than testing of incumbent related to sleep apnea may gain currency in any event, employees, with the exception of tests required by fed- particularly if FMCSA or FTA issues regulations. eral law (such as testing required to ensure compliance with CDL standards and drug and alcohol testing). However, at least some transit agencies have begun VII. CONCLUSIONS functional testing that is required for both job appli- The number of legal requirements to conduct specific cants and employees returning to work after certain physical ability tests--drug and alcohol testing aside-- injuries and illnesses. are primarily limited to CDL requirements for vision and hearing and OSHA requirements for spirometry and hearing tests. Nonetheless, a number of more gen- eral requirements for physical ability could be deter- mined by physical ability tests. Moreover, the lack of physical ability to perform essential job functions may endanger the transit agency's customers, other employ- ees who work with employees whose physical abilities are deficient,566 and such employees themselves. Physi- cal ability testing can be extremely useful in ensuring that transit employees do have the physical ability re- quired to perform their jobs. Regardless of whether physical ability testing is based directly or indirectly on federal requirements or on transit agency policy, such testing must be designed and implemented in compli- ance with laws prohibiting discrimination based on race, gender, age, and disability. For the most part, race is not an issue in physical ability testing provided the testing policy is implemented uniformly. Testing that has a disparate impact on a protected class must be justified as job related and consistent with business necessity. Thus the closer the connection to the essential functions of the job in question, the for cocaine use and use threat of law enforcement to force them into treatment; immediate goal of law enforcement and perva- sive involvement of police in policy took scheme out of realm of "special needs."). 566 For example, if a maintenance task requires a two-person lift, if one person is not physically capable of lifting properly, the other person is at risk of injury.