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

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62 workers or a post-employment test for operators or ser- vice workers. Tri-Met also assesses physical capacity to perform essential job functions based on medical evaluations, including medical history and review of musculoskeletal and general health. As indicated by the medical evalua- tion, a candidate may be asked to demonstrate the abil- ity to bend, squat, or perform some other job-related maneuver, but no standardized physical capacities evaluation program is required. In the case of customer service representatives, however, the employment en- trance exam includes a work test to simulate the task of lifting cases of schedules or other printed materials. Applicants are required to lift a 50-lb crate to chest height three times. As of November 2009, there has been an extremely low failure rate. I. SamTrans551 SamTrans, San Mateo County, California (www.sam trans.com/), conducts fit testing as part of its interview process in hiring new bus operators. The test is con- ducted in actual fleet vehicles, with the applicant re- quired to demonstrate that he or she is able to safely reach, adjust, and operate (as applicable) the brake and accelerator pedals, mirrors, steering wheel, and other controls. The applicant must be able to turn the steer- ing wheel without having his or her torso touch the steering wheel. If an applicant is not able to pass the fit test, he or she does not reach the conditional offer stage of the hiring process. SamTrans has conducted this test for 12 years. An estimate of the failure rate was not available. Sam- Trans requires the test before the conditional offer to ensure that a job applicant does not leave another job only to find out that he or she is unable to safely oper- ate the bus. VI. STRUCTURING PHYSICAL ABILITY TESTING POLICIES Properly configured and administered physical abil- ity tests may reduce a transit agency’s exposure to risk by lowering on-the-job injuries and avoiding accidents caused by personnel who are not physically capable of performing their job requirements.552 In addition, rely- ing on the results of such tests in the recruitment proc- ess may deter legally risky practices such as reviewing an applicant’s workers’ compensation records as a screening mechanism. On the other hand, transit agen- cies may be subject to liability for implementing dis- 551 The summary is based on a Dec. 10, 2009, telephone con- versation with Monica Colondres, Human Resource Director, SamTrans. 552 For example, if a bus operator is not physically capable of properly securing a wheelchair on the bus, the improperly se- cured wheelchair could result in injury to the wheelchair’s occupant or another passenger. In addition to any liability resulting from physical injury in such an incident, the transit agency could face additional liability for hiring an unqualified operator. criminatory tests. Reliance on state law in developing a policy is not necessarily a viable defense. This section reviews the legal parameters that gov- ern designing and implementing physical ability test- ing, discusses various issues that transit agencies may wish to consider in formulating physical ability testing policies, and poses some questions to ask in assessing the legal viability of a physical ability policy. The ques- tions assume—as does the rest of the discussion of structuring these policies—that the transit agency does not engage in intentional discrimination in designing or implementing the policy. It is imperative that where physical ability testing is adopted, the same tests be required under the same conditions for all applicants or employees in the position for which the test is required. Given the risks of improper design and implementa- tion of physical ability testing, individual managers should not be responsible for these activities. Moreover, transit agencies may be advised to provide training to managers on the legal requirements for physical ability testing. A. Summary of Legal Parameters553 A transit agency may choose to implement physical ability testing for job applicants and employees in physically-demanding job positions to ensure that em- ployees are able to safely perform essential job func- tions. In addition to benefiting the transit agency’s cus- tomers and the employees themselves, ensuring that employees are physically capable of safe job perform- ance increases productivity and may reduce workers’ compensation costs. However, physical ability testing may disproportionately screen out women, as well as disabled individuals and individuals age 40 and over. Determining whether this sort of disparate impact oc- curs generally requires a statistical analysis. If the agency purchases an existing test from a vendor, the vendor’s documentation of validity is helpful, but does not relieve the transit agency of the legal responsibility for ensuring the test is valid. Courts will generally scru- tinize test validation performed in anticipation of litiga- tion with great care due to the possible lack of objectiv- ity.554 Where such disparate impact occurs, the transit agency must be able to show that the test is job related and consistent with business necessity. (The precise standard that would be applied in case of litigation de- pends on the transit agency’s jurisdiction, but the most conservative approach regardless of jurisdiction would be to design physical ability tests with the intent to comply with the Lanning standard of evaluating the minimum qualifications necessary for the successful performance of the job in question.) Moreover, if there is a less discriminatory procedure that would produce 553 See generally, EEOC Employment Tests and Selection Procedures, www.eeoc.gov/policy/docs/factemployment_procedures.html. 554 Albemarle Paper Co. v. Moody, 422 U.S. 405, 433 n.32, 95 S. Ct. 2362, 2379, 45 L. Ed. 2d 280, 305 (1975).

63 equally effective results, it is not permissible to use the more discriminatory procedure, although if more than one alternative is available the employer is not neces- sarily required to adopt the least discriminatory alter- native. Finally, physical ability tests must be required of all similarly situated applicants or employees. Absent a BFOQ, it is not permissible to require physical ability tests for groups of employees based on gender, disabil- ity, or age (and it is difficult to conceive of a transit po- sition with a gender-based BFOQ). Reasonable accom- modation should be provided unless the ability being tested is the ability that is impaired for a particular applicant. In addition, a transit agency may consider increasing the requirements for physical testing already required by law, such as vision and hearing testing. Such in- creased requirements could disproportionately affect disabled individuals or those age 40 or older. Such re- quirements must also be shown to be job related and consistent with business necessity in order to avoid vio- lating the ADA. However, if the requirements are shown to be based on a reasonable factor other than age, they will not constitute an employment practice in violation of the ADEA. In addition, applying an age- based standard from another regulation to CDL holders can only be defended if age is a BFOQ for the job in question.555 Although not necessarily directly implicating physi- cal ability testing, the issue of return-to-work medical certifications is related. It is impermissible under the ADA to require employees to be “100 percent healed” to return to work. If the jurisdiction follows the Second Circuit ruling on the issue, a request for a diagnosis may only be allowed under the ADA as part of the re- turn-to-work certification if the requirement is justified as a business necessity. Where courts apply this stan- dard, it appears that such a requirement should be part of a uniform policy that has been shown to be required for the group of employees to whom it is applied. The transit agency should be able to provide specific justifi- cation for the requirement—general allegations about sick leave abuse are not likely to be sufficient. A transit agency may also require a returning em- ployee to undergo a medical examination if there is an objective reason, aside from the fact that the employee took medical leave, that the employee’s medical condi- tion will adversely affect the employee’s ability to per- form essential functions of the employee’s job. The em- ployer may require returning employees to demonstrate that they have the physical ability to perform essential job functions. If such tests are not uniformly required, it is important to ensure that the decision to order such tests is free from any appearance of being based on the race, gender, or age of the employee. At least in the Middle District of Tennessee, the employer may be able to require employees to use the transit agency’s pre- 555 See ADEA: Physical Exams, Informal Discussion Letter, Dec. 20, 2004, www.eeoc.gov/eeoc/foia/letters/2004/adea _physical_exams.html (accessed Nov. 30, 2009). ferred physician for CDL examinations to, for example, ensure consistency, streamline administrative re- sources, and reduce costs.556 B. Considerations in Formulating Testing Policy As a general matter, physical ability testing re- quirements should not be developed based on someone’s idea of what makes sense, either in terms of the pur- pose of the test or actual test parameters. For example, a decision to require job applicants to meet require- ments in excess of those required by USDOT standards should not be made lightly. Managers should not use physical ability tests that have not been appropriately reviewed for validity and effectiveness. Transit agencies should strongly consider requiring legal review and human resource input in the development of any physi- cal ability tests. For example, determining the adverse impact of a test is best made with knowledge of em- ployment testing statistics. As noted at the outset, it is beyond the scope of this report to offer legal advice on structuring a physical ability testing policy. However, this section does discuss matters that transit agencies may want to consider in structuring such a policy. Particular issues to consider include: Test purpose: The more attenuated the connection between the purpose of the test and specific measure- ments of job performance, the more difficult it is to es- tablish that a test with disparate impacts under civil rights, disability, or age statutes is job related and con- sistent with business necessity. Thus the more general purpose of ensuring a healthier—and thus more pro- ductive and less costly—workforce may be achieved with less legal risk by implementing various voluntary measures, such as providing dietary counseling and offering incentives for achieving physical fitness.557 In- creased training may be another approach to reducing on-the-job injuries, thereby lowering workers’ compen- sation claims.558 The legal risk of conducting tests to enforce lifestyle restrictions such as smoking bans or maximum BMI measurements—assuming the tests are administered in a nondiscriminatory fashion—may de- pend in large part on the purpose of the underlying re- strictions. If, for example, state law prohibits discrimi- nating against employees based on nonwork activities, weight restrictions imposed for general health-related reasons may be found to be illegal. On the other hand, restrictions on BMI based on the connection between a specified BMI threshold and obstructive sleep apnea may be found to be job related and consistent with 556 Broadway v. United Parcel Serv., Inc., 499 F. Supp. 2d 992, 1002 (M.D. Tenn. 2007). 557 Incentives should be structured so as not to violate HIPAA. 558 Matthew Santoni, Port Authority Payout on Injury Claims Tops $3 Million, PITTSBURGH TRIBUNE-REVIEW, Oct. 28, 2009, www.pittsburghlive.com/x/pittsburghtrib/news/pittsburgh/s_65 0177.html (accessed Nov. 30, 2009).

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

65 iors that are the cause of injury. This should include an independent job analysis to verify that the work behav- iors being tested are required for successfully perform- ing the job without injury. Timing of test administration: If physical ability tests are conducted before a conditional offer of em- ployment is extended, care should be taken not to in- clude any medical procedures such as taking the appli- cant’s blood pressure or asking any questions related to disability or likely to elicit information related to dis- ability. For example, it is not acceptable, at the pre- offer stage, to ask an applicant if there are any reasons that the applicant cannot perform the required tasks as opposed to asking whether the applicant can perform the required tasks. Reasonable accommodation: If an individual with a disability requires a reasonable accommodation to take a physical ability test, accommodation should be pro- vided unless the ability being tested is the one for which accommodation would be required. Effect on workforce development: While not a legal issue, the effect on workforce development is obviously a consideration. DART, for example, conducted a pilot program under which 130 bus/rail operators were given physical abilities tests at the same time as their peri- odic physical exam. Three employees could not perform or finish walking for 750 ft on the treadmill, and one of those three could not kneel. DART did not implement the testing program.562 In evaluating a physical ability test under considera- tion, questions to consider include the following: • What is the relationship between the physical ability test and actual job requirements?563 This question is easiest to answer when the test simulates actual job requirements. • Is the skill being tested “necessary for safe and effi- cient job performance”? Does the test itself accurately measure the needed skill?564 • Alternatively, does the physical ability test closely approximate actual job tasks? (“job related”) • Does the physical ability test measure actual content of the job itself? (“job related”) • Is there a rational need to perform the task being tested? (“business necessity”) • Does the test inadvertently screen out qualified appli- cants? • Is there an arbitrary cutoff score that has no rational relation to job needs? • Is there an arbitrary cutoff score that can be posi- tively demonstrated to be needlessly high? 562 Response to TCRP Questionnaire, Question VIII, Pro- gram Effectiveness. 563 See David E. Hollar, Physical Ability Tests and Title VII, 67 U. CHI. L. REV. 794–96 (2000) (suggesting two-prong test: skill sought to be measured by employment test is consistent with business necessity and test itself is clearly job related by closely approximating an on-the-job task). 564 See id. at 802. • Even if not tested, are incumbent employees required to meet the test standards? • Are incumbent employees who are unable to pass the test nonetheless able to perform successfully? C. More Is Not Necessarily Better A perhaps intuitive, but ultimately perilous, ap- proach to physical ability testing is the idea that if a particular requirement is necessary, exceeding that requirement will result in better employees: “more is better.” Scenarios in which such an approach could be adopted include strength testing, CDL requirements for vision and hearing, and drug testing. In each scenario, “more is better” may unnecessarily, and perhaps ille- gally, reduce the pool of applicants or employees. Rather than using a “more is better” approach, physical ability testing should be tied to the content of the essen- tial functions of the job or to criteria that are related to successful performance of the essential functions of the job. Strength Testing.—Rationale: Since strength is re- quired to operate a particular piece of equipment, stronger employees would do a better job. Based on that assumption, the manager might argue for a stringent strength test to get “better” employees. Flaw: Such a test might screen out employees—including women, disabled individuals, or individuals age 40 years or older—who could manage the equipment in question and otherwise perform essential job functions. CDL Vision and Hearing Requirements.—Rationale: Physically superior individuals will make better em- ployees, CDL physical requirements should be imposed on other employees, or vision and hearing standards stricter than CDL requirements should be imposed. Flaw: Federal standards have been upheld based on procedures under which they were adopted and job re- latedness of the requirements. Standards in excess of federal standards are likely to be upheld in the face of ADA challenges only upon showing that safety required exceeding the federal standards or extending the stan- dards to other employees. Drug Testing.—Rationale: In order to ensure a drug- free workplace, drug testing should go beyond that re- quired by USDOT, including random testing of employ- ees who are not in safety-sensitive positions. Flaw: The legal rationale for suspicionless drug testing is tied to a balancing of interests: the compelling governmental interest in conducting the test against the employee’s privacy interests. A key factor in finding that the gov- ernment interest is compelling is that the job function in question involves safety or some other position of trust such as dealing with illicit narcotics. Extending random drug testing to employees in nonsensitive posi- tions would be unlikely to pass constitutional muster. In addition, transit agency drug testing should not be coordinated with law enforcement agencies.565 565 See Ferguson v. City of Charleston, 532 U.S. 67, 84, 121 S. Ct. 1281, 1292, 149 L. Ed. 2d 205, 220 (2001) (holding un- constitutional a drug testing scheme to test expectant mothers