Application of Physical Ability Testing to Current Workforce of Transit Employees (2010)

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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 A. Statement of the Problem Physical assessments are accepted as a prerequisite to employment in the transit industry, particularly for safety-sensitive job positions. Such assessments rou- tinely include vision and hearing tests for employees required to hold a commercial driver’s license (CDL), drug and alcohol testing as mandated by federal regula- tions, and hearing and spirometry tests required to meet health and safety standards. Less routine perhaps are physical agility and work tests—whether to assess compliance with federal standards or meet the re- quirements of a given job description—akin to those commonly required for law enforcement officers and firefighters, and tests to measure an employee’s ability to perform movements required to carry out essential job functions. In addition, concerns about employee health may lead transit agencies to consider imposing lifestyle restrictions related to employee weight and off- duty use of tobacco, including instituting physical test- ing to measure compliance with those restrictions. Fi- nally, employers may wish to require assessments of physical ability, either through inquiries or actual test- ing, when employees return to work after an injury or prolonged absence. Any tests conducted to assess physical ability—as well as inquiries related to physical ability—are subject to limitations under federal and state law; violations of those requirements may result in liability under civil rights and nondiscrimination statutes. Testing policies must be structured to take such requirements into ac- count. 1. Purpose Developing a physical ability testing1 policy requires determining whether to test job applicants, incumbent 1 The term “physical ability testing” is used in this report to refer to any testing that purports to measure an individual’s ability to perform the essential physical requirements of a job. The term is meant to incorporate both physical agility/work tests (which the EEOC considers to measure the individual’s ability to perform actual or simulated job tasks) and physical fitness tests (which the EEOC considers to measure an indi- vidual’s performance of physical tasks such as running or lift- 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 measure the ability to perform required physical movements, based on job analysis of required move- ments; whether to test broadly for the physical ability to carry out essential functions of the job or to focus on the physical ability to perform particular essential ma- neuvers that have been tied to workplace injuries; whether to test general physical fitness; and whether to set standards that exceed those that are required under federal regulations or to extend required standards to employees not covered by federal regulations. These issues arise in both a legal context and an operational context. This digest addresses the legal context. The digest is meant to provide transit agencies with a solid foundation for conducting more jurisdiction- specific research and analyzing the legal risks and benefits of various approaches to physical ability test- ing. The digest also provides examples of physical abil- ity testing, reported by transit agencies to the author or described in secondary sources, that may be of particu- lar interest given the apparent absence of industry-wide efforts to develop physical ability testing standards.2 The intent is to allow other transit agencies to apply the legal principles identified in the report to assess the benefits and costs of instituting such testing, based on the transit agencies’ own legal analysis and operational considerations. ing), as well as tests designed to test an individual’s ability to carry out discrete physical requirements as measured by a job analysis of essential functions of the job. This definition differs from the terminology of some industrial medicine profession- als. See e.g., Andrew S. Jackson, Types of Physical Performance Tests, in THE PROCESS OF PHYSICAL FITNESS STANDARDS DEVELOPMENT 101–02 (Stefan Constable, Barbara Palmer eds., 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 components of aerobic capacity, body composition, strength, muscular endurance, and flexibility” to evaluate the individ- ual’s capacity to perform demanding work tasks and their physical fitness, and to “work sample tests” as evaluating the individual’s ability to perform specific work tasks). 2 Cf., Efforts of firefighter associations to develop physical ability standards. See I.B.2., Examples of Physical Ability Test- ing, infra this digest.

4 2. Focus The balance of the Introduction presents background information concerning the reasons for conducting physical assessments—such as testing an applicant or employee’s physical ability to perform a specific job task, testing for drug use, or testing visual acuity—and describes examples of physical ability testing conducted by law enforcement and fire departments, nontransit commercial drivers, and non-transit maintenance workers. Section II of the digest reviews statutory and regulatory requirements that relate to physical assess- ments of transit employees, including drug and alcohol testing requirements, CDL medical requirements, occu- pational safety and health requirements, and require- ments for school bus drivers. Section III then examines legal restrictions on physical ability testing, including prohibitions on discrimination in employment based on race, gender, age, and disability; medical leave re- quirements; and constitutional limitations on govern- ment-mandated searches. Section IV reviews tort and workers’ compensation liability for injuries suffered during physical ability tests, as well as the legal ramifi- cations of lifestyle restrictions on obesity and off-duty use of tobacco. Section V of the digest summarizes high- lights of responses to the study questionnaire and de- scribes several specific examples of physical ability test- ing in the transit industry. Finally, while it is beyond the scope of this report to render a legal opinion or rec- ommend a specific physical ability testing policy, sec- tion VI does examine issues to be considered in struc- turing a physical ability testing policy. The report includes citations to state family and medical leave statutes (Appendix A); a list of state equal employment opportunity statutes, regulations, and agencies (Appen- dix B); and a list of the transit agencies that responded to the report questionnaire (Appendix C). As is the case throughout the report, links to citations are provided for convenience; transit agencies should verify statutory language from official sources. 3. Scope The legal ramifications of employment testing are extensive, and in their entirety are beyond the scope of the report. The report addresses or references relevant federal statutes and cases to the extent that they affect physical ability testing, as well as examples of state authority that advances or differs from federal law. As with all such reviews, however, the report provides a starting point for, not the final word on, legal evalua- tion of a specific policy in a given jurisdiction, particu- larly in terms of state authority. The report does not cover all state statutes and cases. In evaluating the legality of a physical ability testing policy in a specific jurisdiction, further research is advisable. A number of ancillary issues are discussed briefly, including the ramifications of test results, such as rein- statement following drug tests; the need for operational guidance on how to devise and administer tests; the ramifications of collective bargaining agreements;3 CDL requirements for diabetes and epilepsy;4 and fitness for duty certifications required after returning from sick leave and after injuries.5 Issues beyond the scope of the digest include mental health testing, medical status due to medications,6 medical testing for common acute or chronic infectious diseases, requirements for nonopera- tional personnel (office personnel), and operational guidance on devising and administering physical ability tests.7 An analysis of requirements for process and liti- gation issues applying to all cases brought under fed- eral statutes, such as standards for awarding back pay, is also beyond the scope of the digest. B. Background This section describes several discrete reasons for conducting testing of physical ability, such as testing an applicant or employee’s ability to perform physical tasks; physical status, such as drug and alcohol use, tobacco use, or body weight; and physical capacity, such as vision. Also discussed are examples of physical abil- ity testing that are relevant either because the category of testing is sufficiently well-established to have devel- oped legal principles that would apply to transit testing, or because the testing occurs in job categories analogous to transit job categories. 3 E.g. In the Matter of New Jersey Transit Corporation, P.E.R.C. No. 2007-63, May 31, 2007 (labor dispute arising from fitness for duty issues), www.perc.state.nj.us/perc decisions.nsf/IssuedDecisions/7804E54E7B44EE64852572ED 007136B9/$File/PERC%202007%2063.pdf?OpenElement; Metro/King County New Sick Leave Agreement (agreement covers medical verification of sick leave, including self- verification), www.atu587.com/documents/PDFofSickleave letter.pdf. 4 FMCSA standards generally provide that a person is physically fit to drive a commercial motor vehicle if the person “has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control’’ (49 C.F.R. 391.41(b)(3)) and “has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness, or any loss of ability to control a commercial motor vehicle.” (49 C.F.R. 391.41(b)(8)). However, based on 49 U.S.C. 31315 and 31136(e), FMCSA has an exemption procedure for persons with insulin-treated diabe- tes (70 Fed. Reg. 67777, Nov. 8, 2005) and epilepsy. 5 E.g., Martin v. Town of Westport, 329 F. Supp. 2d 318 (D. Conn. 2004). 6 E.g., Giordano v. City of N.Y., 274 F.3d 740 (2d Cir. 2001) (police officer recommended for retirement because of required use of anticoagulant); Burton v. Metro. Transp. Auth., 244 F. Supp. 2d 252 (S.D.N.Y. 2003) (employee deemed not qualified as bus driver because of use of anticoagulant). 7 For a thorough discussion of conducting a physical de- mands analysis in order to develop physical ability tests, see Mark Rayson, Job Analysis, in THE PROCESS OF PHYSICAL FITNESS STANDARDS DEVELOPMENT (Stefan Constable, Bar- bara Palmer eds., 2000), www.dtic.mil/cgi-bin/GetTRDoc?AD= ADA495349&Location=U2&doc=GetTRDoc.pdf (accessed Oct. 27, 2009).

5 1. Reasons for Physical Testing The use of employment testing to make decisions about employee selection and promotion is widespread and increasing.8 Clearly it is important that employees be physically fit for their jobs: it is important that em- ployees be able to safely carry out specific physical re- quirements.9 Thus, employers conduct various types of physical ability tests to ensure that employees have sufficient strength to safely perform required job tasks. In the case of the transit industry, such testing may serve to provide a higher level of safety to the employ- ees and members of the public and to reduce on-the-job injuries and their attendant costs, both in terms of pro- ductivity and workers’ compensation costs.10 Depending 8 EEOC Commission Meeting of May 16, 2007, www.eeoc.gov/abouteeoc/meetings/5-16-07/transcript.html. For example, there has been an increase in employee testing as a way to screen the high volume of responses to online applica- tions in a nonsubjective way. EEOC, Employment Tests and Selection Procedures, www.eeoc.gov/policy/docs/factemployment_procedures.html. Testing has also increased due to security concerns, but it is unlikely that physical ability testing has increased for that reason. 9 For example, a bus driver can be expected to have the fol- lowing physical abilities: • Near Vision—The ability to see details at close range (within a few feet of the observer). • Depth Perception—The ability to judge which of several objects is closer or farther away from you, or to judge the dis- tance between you and an object. • Far Vision— The ability to see details at a distance. • Reaction Time—The ability to quickly respond (with the hand, finger, or foot) to a signal (sound, light, picture) when it appears. • Response Orientation—The ability to choose quickly be- tween two or more movements in response to two or more dif- ferent signals (lights, sounds, pictures). It includes the speed with which the correct response is started with the hand, foot, or other body part. • Spatial Orientation—The ability to know your location in relation to the environment or to know where other objects are in relation to you. • Night Vision—The ability to see under low light condi- tions. Occupational Information Network, Summary Report for: 53-3021.00–Bus Drivers, Transit and Intercity, http://online.onetcenter.org/link/summary/53- 3021.00#Abilities. 10 E.g., Thomas B. Gilliam, Gary Kohn, Suzanne J. Lund, & Maggie Hoffman, Physical Ability Tests: Injury Reduction in Airline Workers Through a New Hire Physical Capability Screening Program, Presented to Annual Meeting of the American College of Sports Medicine, May 31, 2002, St. Louis, Mo., http://ipcs-inc.com/uploads/ACSM%20Speech-UAL-02- combined.pdf. A plethora of companies offer various testing services on the premise that the use of their testing services will lead to hiring employees with the physical capability to perform required job tasks, thereby reducing workplace inju- ries. E.g., www.med-tox.com/quicktest.htm. Neither the author nor the Transportation Research Board (TRB) in any way en- on the job in question, physical abilities tested for tran- sit positions may include grasping strength, lifting strength, eye/foot coordination, and manual dexterity. Generally the physical ability to perform essential func- tions of the job is tested with physical agility tests or work sample tests. The most significant advantage of a test that replicates work tasks is the high content valid- ity of the test. However, depending on the work tasks, such tests may be expensive to create and may pose safety issues.11 In addition to preemployment testing, employers may wish to assess functional capacity when employees return to work following illness or injury.12 Generally fitness for duty after an illness or accident, whether work-related or not, is determined by medical certification,13 but can be the subject of physical ability testing. In addition to testing to ensure that employees are physically able to perform essential job functions, physical testing in the transit industry may be required to assess whether employees meet legally specified standards, such as requirements specified by depart- ments of transportation for visual acuity, color blind- ness, and night vision; for absence of substance abuse;14 or to assess whether health and safety standards are being complied with, such as when employees are re- quired to use respiratory devices, when they are ex- dorses this nor any other commercial source cited as an exam- ple of available resources, nor their approaches to testing. 11 Jackson, supra note 1, at 121–22, www.dtic.mil/cgi- bin/GetTRDoc?AD=ADA495349&Location=U2&doc=GetTR Doc.pdf (accessed Oct. 27, 2009). Content validity is discussed in III.A.1, Title VII, infra this digest. 12 A PRACTICAL APPROACH TO OCCUPATIONAL AND ENVIRONMENTAL MEDICINE 5 (Robert J. McCunney, ed., 3d ed. 2003). See also American Physical Therapy Association, Occu- pational Health Guidelines: Evaluating Functional Capacity, www.apta.org/AM/Template.cfm?Section=Policies_and_Bylaws &Template=/CM/ContentDisplay.cfm&ContentID=62842 (ac- cessed Oct. 27, 2009); Division of Workers' Compensation, Rhode Island Department of Labor and Training, Donley Cen- ter Functional Capacity Evaluations, www.dlt.state.ri.us/donley/fce.htm (accessed Oct. 27, 2009). 13 E.g., Spokane Transit Authority Family and Medical Leave Policy, at 6, www.spokanetransit.com/employment/documents/FMLA_Polic y_2003.pdf. 14 Although percentages appear to have peaked, large num- bers of private employers still require drug testing of job appli- cants and employees as a matter of company policy. Diane Cadrain, Drug Testing Falls Out of Employers' Favor, HR MAGAZINE, June 2006, at 38, http://findarticles.com/p/articles/mi_m3495/is_6_51/ai_n269093 15/ (accessed Oct. 26, 2009). The American Management Asso- ciation found that drug testing peaked at 81 percent in 1986, and declined steadily to 62 percent in 2004. Id. at 39. Ques- tions have been raised about the effectiveness of drug testing. Lewis L. Maltby, Drug Testing: A Bad Investment, Sept. 1999, www.workrights.org/issue_drugtest/dt_drugtesting.pdf (accessed Oct. 26, 2009). Transit agencies, of course, must con- duct drug testing as required by federal regulations. See II.A., Drug and Alcohol Testing, infra this digest.

6 posed to certain toxic chemicals, and when they are exposed to certain noise levels. While these legal re- quirements are generally met through medical testing, in some circumstances physical ability tests could be conducted. For example, the Federal Motor Carrier Safety Administration (FMCSA) standards establish a variety of physical benchmarks15 that are generally measured through medical tests and clinical diagnoses, not physical ability tests. However, certain of these re- quirements—such as the absence of rheumatic, ar- thritic, orthopedic, muscular, neuromuscular, or vascu- lar disease that interferes with the employee’s ability to control and operate a commercial motor vehicle (CMV) safely—could be assessed by physical ability tests measuring grasping strength, based on job analyses of the strength required to carry out various tasks needed for safe operation of a bus or rail car. Moreover, the legal restrictions on physical ability testing may also apply to tests conducted to measure physical capacities (such as vision and hearing) and status (such as sub- stance abuse). A third area where employers may consider physical ability testing is to enforce requirements concerning lifestyle choices that can affect employee productivity and costs. Growing numbers of employers are inter- ested in controlling healthcare costs through wellness programs and increased insurance premiums for em- ployees with characteristics that put their health at risk.16 The transit industry certainly faces concerns about employee health, particularly given the effects of scheduling pressure on operators’ diet, sleeping pat- terns, and exercise.17 The cost-raising effects of un- healthy employees include absenteeism, medical ex- penses, stress on other employees who must cover for them, and recruitment/hiring/training costs for re- placements.18 Employers may be particularly concerned about the health risks posed by obesity and smoking, because of the effect those risks may have on productiv- ity—in terms of the employee’s ability to perform job functions and to maintain appropriate work atten- dance—and on health care costs to the employer.19 15 49 C.F.R. § 391.41, Physical qualifications for drivers, http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/49cfr391.41. pdf. 16 Michelle M. Mello & Meredith B. Rosenthal, Wellness Programs and Lifestyle Discrimination—The Legal Limits, NEW ENG. J. MED. 359(2):192-9 (2008). 17 See MARY J. DAVIS, TRANSIT OPERATOR HEALTH AND WELLNESS PROGRAMS, A SYNTHESIS OF TRANSIT PRACTICE (Transit Cooperative Research Program, TCRP Synthesis No. 52, 2004); GERALD P. KRUEGER, REBECCA M. BREWSTER, VIRGINIA R. DICK, ROBERT E. INDERBITZEN, & LOREN STAPLIN, HEALTH AND WELLNESS PROGRAMS FOR COMMERCIAL DRIVERS, 7-16 (Commercial Truck and Bus Safety Synthesis Program, Synthesis No. 15, 2007). 18 DAVIS, supra note 17. See also McCunney, supra note 12, at 154–57 (employers’ concerns in general about health care costs and absenteeism). 19 Edelman, Finding Wealth Through Wellness: How Engag- ing Employees in Preventive Care Can Reduce Healthcare In the case of bus and rail operators, obesity may have very specific safety implications because of the connection between body mass and obstructive sleep apnea20 and because of the effect of body mass on the ability to safely perform maneuvers such as steering a bus.21 In July of 2009, The National Transportation Safety Board (NTSB) found that a train operator’s high body mass index (BMI) was a likely contributing factor in a crash of a Massachusetts Bay Transportation Au- thority (MBTA) Green Line train that killed the opera- tor, caused crew and passenger injuries, and caused estimated damages of $8.6 million. In its report to the Federal Transit Administration (FTA) on the accident, the NTSB stated: Obstructive sleep apnea is associated with fatigue and significant cognitive and psychomotor deficits that are at least partially reversible with appropriate treatment. Ac- cident rates have been shown to be considerably higher in drivers with obstructive sleep apnea than in those with- out the disorder. The Federal Motor Carrier Safety Ad- ministration (FMCSA) medical review board recently rec- ommended that the FMCSA require screening for obstructive sleep apnea in all drivers with a BMI over 30. The NTSB concludes that the operator of the striking train was at a high risk for having undiagnosed sleep ap- nea, and she may have been chronically fatigued as a re- sult of the condition. (footnotes omitted)22 Based on its investigation and finding concerning MBTA’s accident, NTSB recommended that FTA de- velop guidance regarding identification and treatment Costs, An Executive Guide to Corporate Wellness Programs, at 7, 18–19 (2006), www.edelman.com/image/insights/content/ Wellness_White_Paper.pdf; Susan E. Lessack, More Employers Trying to Regulate Employee Off-Duty Behavior, LABOR AND EMPLOYMENT LAW UPDATE, Pepper Hamilton LLP, Dec. 12, 2007, www.pepperlaw.com/publications_update.aspx? ArticleKey=1037. One study found that smokers had 18 per- cent higher medical claims. McCunney, supra note 12, at 155. 20 Alan Levin, Transit Accidents Linked to Sleep Disorders, USA TODAY, July 23, 2009, www.usatoday.com/news/nation/ 2009-07-23-sleepypilots_N.htm (accessed Oct. 3, 2009); JoNel Aleccia, Heavy, Drowsy Truckers Pose Risk on the Road, June 14, 2009, www.msnbc.msn.com/id/31066019/ (accessed Oct. 29, 2009); Obstructive Sleep Apnea and Commercial Motor Vehicle Driver Safety (Executive Summary), Presented to Federal Mo- tor Carrier Safety Administration, July 12, 2007, www.fmcsa.dot.gov/rules-regulations/TOPICS/mep/report/ Sleep-Apnea-Final-Executive-Summary-prot.pdf. 21 See V., Transit Agency Practices, infra this digest. 22 National Transportation Safety Board, Safety Recom- mendation R-09-9, July 23, 2009, at 3–4, citing O. Resta and others, Sleep-Related Breathing Disorders, Loud Snoring and Excessive Daytime Sleepiness in Obese Subjects, INTERNATIONAL JOURNAL OF OBESITY-RELATED METABOLIC DISORDERS, 25(5), at 669–75 (2001); L. Ferini-Strambi and others, Cognitive Dysfunction in Patients with Obstructive Sleep Apnea (OSA): Partial Reversibility After Continuous Posi- tive Airway Pressure (CPAP), BRAIN RESEARCH BULLETIN, June 30, 2003, 61(1), at 87–92, www.ntsb.gov/recs/letters/2009/R09_8_9.pdf.

7 of individuals at high risk for obstructive sleep apnea and other sleep disorders.23 While employers may have concerns about other life- style choices, the focus in this report is on tobacco use and obesity,24 given that those are the two leading causes of preventable death in the United States,25 and because if employers choose to institute requirements concerning tobacco use and obesity, physical testing is one of the options for enforcing such requirements. 2. Examples of Physical Ability Testing Police and firefighters are frequently subject to physical ability testing. The extensive body of case law surrounding such testing sets forth principles applica- ble to physical ability testing of safety-sensitive transit employees. Moreover, for transit agencies that employ their own police officers, police standards are not merely analogous, but directly relevant, should the agencies require those officers to undergo physical abil- ity testing. In addition, testing for employees in analo- gous job categories, such as commercial drivers and maintenance workers, provides examples of approaches to testing relevant to transit testing. This section de- scribes several examples of physical ability tests to pro- vide context for the legal analysis that follows. Firefighters/law enforcement.—Candidate physical ability tests are common for fire departments. The Na- tional Fire Protection Association Standard 1583 pro- vides general concepts for firefighter fitness, recom- mending that firefighters involved in emergency operations participate in periodic fitness assessments.26 A widely used test is the Candidate Physical Ability Test (CPAT), a standardized pass/fail test developed by a task force made up of two major firefighting associa- tions and 10 major North American fire departments that is used by fire departments throughout the United States.27 23 National Transportation Safety Board, Safety Recom- mendation R-09-9, July 23, 2009, at 5. 24 There is a legal distinction between obesity that is caused by a physiological condition and obesity that is not so caused. See II.B., ADA and III.A.2., Prohibitions Against Discrimina- tion Based on Physical Disability, infra this digest. 25 Between 2000 and 2004, tobacco use was responsible for an estimated 443,600 early deaths annually and more than $196 billion annually in health-related costs (including both medical costs attributable to smoking and productivity losses). Tobacco-Related Cancers Fact Sheet, American Cancer Society. www.cancer.org/docroots/PED/content/PED_10_2x_ Tobacco-Related_Cancers_Fact_Sheet.asp?sitearea=ped. Obe- sity is associated with “high risk for and prevalence of hyper- tension, type II and gestational diabetes, cardiovascular dis- ease,” and other ailments, McCunney, supra note 12, at 163. 26 NFPA 1583, Standard on Health-Related Fitness Pro- grams for Fire Department Members, www.nfpa.org/about thecodes/AboutTheCodes.asp?DocNum=1583. 27 See Candidate Physical Ability Test Manual, www.publicsafetymed.com/Redmond%20docs/CPAT%20Manua l.PDF (accessed Nov. 17, 2009). The test consists of eight events that candidates must complete within 10 minutes, 20 seconds, wearing a weighted vest to simulate the firefighter’s protective gear. The task force developed the test based on its re- view of actual job functions of member fire depart- ments. The group first reviewed task force members’ job analysis, job task surveys, and then-current perform- ance tests and job descriptions to come up with a list of tasks to analyze in more detail. The task force then de- veloped the test based on survey responses about the identified tasks. Orientation and pre-test procedures were adopted in 2006 after a conciliation agreement was reached with the U.S. Equal Employment Oppor- tunity Commission (EEOC).28 An Orientation Guide describes the specific tasks and standards for passing each event.29 Applicants may prepare using an exercise program designed specifically for the CPAT.30 28 Fire Service Joint Labor Management Wellness-Fitness Task Force Candidate Physical Ability Test (CPAT) Program Summary, www.iaff.org/HS/CPAT/cpat_index.html. Examples of other fire departments requiring candidates to pass the CPAT include Raleigh, N.C., www.raleighnc.gov/portal/server.pt/gateway/PTARGS_0_2_306 _202_0_43/http%3B/pt03/DIG_Web_Content/category/Resident/ Fire/Recruitment/Cat-1C-2007404-133139- Candidate_Physical_Abili.html (accessed Oct. 21, 2009) and San Francisco, www.jobaps.com/SF/sup/BulPreview.asp?R1=cbt&R2=00H2&R 3=053650 (accessed Oct. 21, 2009). 29 The eight events, the tasks they simulate, and the actual equipment used for the simulation are as follows: • Stair Climb: climbing stairs wearing protective clothing and carrying equipment; stair machine and shoulder weights. • Hose Drag: dragging an uncharged hoseline from the fire apparatus to the fire occupancy and pulling an uncharged hoseline around obstacles while remaining stationary; actual uncharged fire hose with hoseline nozzle. • Equipment Carry: removing power tools from a fire appa- ratus, carrying them to the emergency scene, and returning the equipment to the fire apparatus; two saws and a tool cabinet. • Ladder Raise and Extension: placing a ground ladder at a fire structure and extending the ladder to the roof or window; two 24-ft fire department ladders. • Forcible Entry: using force to open a locked door or to breach a wall; mechanized device that measures cumulative force and a 10-lb sledgehammer. • Search: searching for a fire victim with limited visibility in an unfamiliar area; closed search maze with obstacles and narrowed spaces. • Rescue: removing a victim or injured partner from a fire scene; weighted mannequin. • Ceiling Breach and Pull: breaching and pulling down a ceiling to check for fire extension; mechanized device that measures overhead push and pull forces and a 6-ft pole com- monly used in firefighting. CPAT Orientation Guide. This guide is available from the International Association of Fire Fighters, www.iaff.org/ (membership required). 30 CPAT Preparation Guide. This guide is available from the International Association of Fire Fighters, www.iaff.org/ (membership required).

8 Physical ability testing is also common for police de- partments. A number of departments use a common term, POPAT (Police Officer Physical Agility Test), but the content of POPATs can vary significantly. Various statewide law enforcement organizations develop physi- cal ability/agility standards that are either used throughout the state or used as a basis for police de- partments to develop their own standards.31 For exam- ple, the Police Officer Standards and Training Council of Connecticut has adopted a Physical Ability Assess- ment that is used statewide. This test consists of four elements: sit-ups (measuring muscular endurance, re- lated to use of force tasks); sit-and-reach (measuring flexibility); bench press (measuring absolute strength); and a 1.5-mi run (measuring cardiovascular capacity).32 Each Connecticut police department sets its own crite- ria, that is, its own passing rates. The Maine Criminal Justice Academy has developed a physical agility pre- entrance test that police departments within the state use to create their own physical assessment tests.33 The Wyoming Law Enforcement Academy has a physical agility entrance exam,34 which police departments in the state use as a basis for their preemployment physi- cal agility assessment.35 The Maryland Transportation Authority requires its applicants to pass a preemployment physical agility assessment test consisting of six components that measure general fitness needed to perform job func- tions, rather than simulating specific job functions.36 31 Alan Andrews & Julie Risher, What does THAT have to do with being a cop? Employment Standards in Law Enforce- ment. Presented at International Association of Chiefs of Police 2006 Conference, Boston, Mass., Oct. 14, 2006, at 13, www.aele.org/andrews2006.pdf. Numerous validation studies have been performed to relate physical fitness abilities such as aerobic and anaerobic power, strength, flexibility, explosive power, and agility to the ability to perform specific policy offi- cer job tasks. Thomas R. Collingwood, Robert Hoffman & Jay Smith, Underlying Physical Fitness Factors for Performing Police Officer Physical Tasks, POLICE CHIEF MAGAZINE, vol. 71, no. 3, March 2004, http://policchiefmagazine.org/magazine /index.cfm?fuseaction=display_arch&article_id=251&issue_id= 32004 (accessed Oct. 23, 2009). One source of standards is the Cooper Institute, www.cooperinst.org/. E.g., City of Ottowa (Kan.), http://www.ottawakansasnet/hrforms/2010%20Police %20Application%20Packet.pdf; City of Rockwall (Tex.) Police Department, www.rockwall.com/HR/Documents/PDGuidelines .pdf (accessed Oct. 22, 2009); Rowlett Police Department, http://www.rowlett.com/index.aspx?nid=186. 32 The Physical Ability Assessment, Complete Health & In- jury Prevention, www.chip-inc.com/test/ (accessed Oct. 22, 2009). 33 Town of Falmouth, www.town.falmouth.me.us/Pages/ FalmouthME_Police/hiringprocess (accessed Oct. 22, 2009). 34 General Information, Wyoming Law Enforcement Acad- emy, www.wleacademy.com/Basic/physassess.htm (accessed Oct. 22, 2009). 35 www.casperwy.gov/PoliceJobs/tabid/584/Default.aspx. 36 Maryland Transportation Authority Police, Police Offi- cer/Police Cadet Orientation, Other police departments use more content-oriented physical agility assessments. For example, the Univer- sity of Arizona Police Department requires the follow- ing assessment: “a 500 yard run, 99 yard obstacle course, 165 lb body drag (32 feet), climb over a 6 foot chain link fence, and a climb over a 6 foot solid wall.”37 The Hickory, North Carolina, POPAT combines fitness exercises with task simulations that use a police cruiser, a body, and a staircase.38 Similarities between the actual requirements in law enforcement/firefighter tests and transit tests include firefighter respirator requirements, which may be rele- vant to respirator requirements for mechanics, and cer- tain elements of tests used for police departments, such as sit-and-reach, which may also be used in the transit context. However, other specific elements of law en- forcement/firefighter testing may differ substantially from what would relate to transit job functions other than transit police. For example, anaerobic require- ments may be greater for law enforcement/firefighters than for most transit positions. Strength requirements may also vary considerably. Candidates for these law enforcement/firefighter positions are often put on notice of the physical ability requirements in advance and advised to train to meet the requirements.39 Where de- partments use statewide tests to screen applicants, ap- www.mdfop34.org/flyers/orientation.pdf (accessed Oct. 22, 2009). Specific abilities tested are: • Push–Ups: measures muscular endurance, 24 in 1 minute required to pass. • Sit–Ups: measures muscular endurance, 28 in 1 minute required to pass. • Flexibility: measures range of motion of lower back and hamstrings, must reach 16 in. to pass. • 1.5-mi Run: measures cardiovascular capacity, must be completed in 15.55 minutes or less to pass. • Vertical Jump: must reach 15 in. to pass. • 300 Meter: measures cardiovascular capacity, must be completed in 70.1 seconds or less to pass. 37 Police Officer/Police Officer Recruit, www.uapd.arizona.edu/police%20officer%20recruit.htm (ac- cessed Oct. 22, 2009). See also Pre-employment/Post Offer Physical Abilities Test Rationale for Corrections Officers and Correctional Program Officers, www.mass.gov/Eeops/docs/doc/physical_abilities_test_rationale .pdf (accessed Nov. 6, 2009). 38 Police Officer Physical Agility Test (POPAT), Date of Re- cord: Dec. 23, 2008, www.hickorygov.com/egov/docs/1230062920702.htm (accessed Oct. 23, 2009). See also Become an El Cerrito Police Officer: Physical Agility/Abilities Test, www.el-cerrito.org/employee_services/jobop_policeofficer.html (accessed Nov. 30, 2009). 39 E.g., Police Officer Physical Agility Test Training Manual, City of Miami, www.miamigov.com/employeerel/pages/PORecruitment/Police %20Officer%20(Basic%20Recruit)%20Physical%20Agility%20T est%20Training%20Manual.PDF.