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9 plicants may take the test and rely on the result for a Ohio Department of Transportation requires applicants fixed period of time.40 for the position of Highway Technician 1 to pass a Commercial drivers.--Except for the requirement of physical ability test as part of the interview process. a passenger endorsement, other commercial drivers are Employees in this position operate basic equipment and subject to the same CDL physical requirements as tran- perform seasonal highway maintenance activities, in- sit bus operators.41 Some employers of such commercial cluding minor repairs and maintenance on equipment. drivers impose standards beyond those required by the The test, which is meant to demonstrate that candi- FMCSA, for example, requiring drivers of vehicles with dates can perform the essential physical duties of the gross vehicle weight (GVW) of 10,000 lb or less to meet job, requires candidates to "physically demonstrate the the FMCSA CDL standards for drivers of vehicles with ability to lift, pull, drag, and/or maneuver between 50- a GVW of more than 10,000 lb.42 Employers of commer- 100 pounds." The test course uses on-the-job equipment cial drivers may require strength testing as part of the and materials. Candidates must successfully complete hiring process43 or under other circumstances, such as each of six events to proceed with the interview proc- upon return to work from an injury. Questions about ess.46 assessing the physical capacity of commercial drivers Western State College of Colorado includes vehicle are relevant for transit operators as well. For example, mechanics in the job classifications for which new hires the issue of whether a municipal sanitation driver with must pass a post-job offer, preemployment physical abil- night blindness was considered disabled under the ity test. The purpose of the test is "to ensure the pro- Americans With Disabilities Act of 1990 (ADA)44 would spective employee possesses the physical capabilities also be relevant to transit bus drivers. The Second Cir- necessary to safely perform the essential functions of cuit held that such a worker was covered by the ADA.45 47 the job." Maintenance workers.--Employers may require physical ability testing for applicants and/or employees II. STATUTORY AND REGULATORY in other maintenance-related jobs. For example, the REQUIREMENTS THAT RELATE TO PHYSICAL ABILITY TESTING OF TRANSIT EMPLOYEES 40 For example, the Maine Department of Public Safety re- Transit agencies should be familiar with the regula- lies on the physical fitness test of the Maine Criminal Justice tory requirements associated with CDLs, drug testing, Academy. Applicants must pass the test in order to be placed and Occupational Safety and Health Administration on the employment register, and may rely on results obtained (OSHA) requirements (or the state equivalent, as appli- within the previous year. Maine Department of Public Safety, State Police Trooper, Application Process, www.maine.gov/bhr cable). This section reviews those statutory and regula- /state_jobs/directhire/StatePoliceTrooper(10-24-05).htm tory requirements that either directly require physical (accessed Oct. 28, 2009). ability testing of transit employees or that could be 41 Although the Federal CDL requirements do not apply di- cited in support of such testing to provide context for rectly to most transit operators, many states have adopted the two legal issues that may be less familiar: whether a federal medical requirements, as have many transit agencies. transit agency may impose more stringent standards See II.B., Commercial Driver's License/Medical Requirements, than those described in this section, and, if so, what the infra this digest. parameters are for testing to that higher standard.48 42 United Parcel Service (UPS) had imposed a blanket pro- The discussion covers the issues of whether federal hibition on drivers who could not meet the FMCSA hearing regulations preempt state laws on drug testing and standard, regardless of vehicle size. In June of 2009, UPS ap- what are permissible uses of the results of drug tests. parently agreed to allow drivers who cannot meet the FMCSA Constitutional challenges to drug testing and the legal standard to compete for jobs driving small delivery vans, pro- ramifications of transit agencies conducting physical vided the drivers are able to pass special tests and receive ability testing not explicitly required by federal or state training. Bob Egelko, UPS to Allow Hard-of-Hearing Drivers, law are discussed in Section III, Legal Restrictions on SAN FRANCISCO CHRONICLE, June 17, 2009, www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/17/BA5A188 Physical Ability Testing. DRO.DTL (accessed Nov. 16, 2009). See III.B.3, Elements of Claim, infra this digest. 43 46 E.g., University of Illinois at Urbana-Champaign requires Jennifer Sradeja, Physical Abilities Tested as Part of HT ARCON strength test for drivers as part of preemployment Series, Ohio Department of Transportation Employee Newslet- testing. Employment Services, Nonacademic Staff Pre- ter, Dec. 2004, at 11, www.dot.state.oh.us/Divisions/ Employment Testing, Pre-Employment Physicals, Drug Test- Communications/transcript/Transcript&20Archive/ ing, and ARCON Strength Testing, www.shr.illinois.edu/ Accomplishments2004.pdf (accessed Nov. 10, 2009); Highway employment/Pre-EmployTest.html (accessed Nov. 16, 2009). Technician 1 Job Description, http://agency.governmentjobs. 44 101 Pub. L. No. 336, 104 Stat. 327, July 26, 1990, codified com/ohio/default.cfm?action=viewclassspec&classSpecID= as 42 U.S.C. 12101 et seq. Tit. I, Employment, is codified as 87625&agency=1483&viewOnly=yes. 47 42 U.S.C. 1211112117. Employment Opportunities at Western, www.western. 45 Capobianco v. City of N.Y., 422 F.3d 47 (2d Cir. 2005) edu/administration/hr/Applicants/job-listings.html. 48 (sanitation driver dismissed due to congenital night blindness E.g., Shannon v. N.Y. Transit Auth., 332 F.3d 95, 103 (2d was disabled and could have performed with reasonable ac- Cir. 2003) (allowing NYCT to set higher requirement for color commodation). blindness than in federal standard).