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

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66 D. Outlook for Employee Physical Ability Testing The primary obstacles to physical ability testing in- clude financial constraints, lack of proof of effective- ness, and concerns about legal liability. The effective- ness concern relates partly to expectations: if management expects a physical ability test to screen out large numbers of job applicants, the types of tests that are currently in use (and probably those tests that would be legally supportable in the transit context) are not likely to meet expectations. If, however, tests are expected to screen out those few individuals who lack the physical ability to perform essential functions of the job, then physical ability tests may serve an important purpose. As one transit human resources professional explained, avoiding one workers’ compensation case by screening out a job applicant who is physically unquali- fied for the job is extremely cost effective. The outlook for physical ability testing in general could improve if there were some industry-wide effort to conduct operational case studies or develop basic proto- cols that transit agencies could evaluate and adopt for their particular circumstances. Physical-ability testing related to sleep apnea may gain currency in any event, particularly if FMCSA or FTA issues regulations. VII. CONCLUSIONS The number of legal requirements to conduct specific physical ability tests—drug and alcohol testing aside— 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. more defensible the test will be. Test design and valida- tion should be conducted by qualified professionals, not by line management, and should be reviewed by agency human resources and legal personnel. The employer, not a test vendor, is legally responsible for test validity. In addition, physical ability testing for positions covered by collective bargain agreements must be consistent with those agreements. Transit agencies may wish to implement physical ability testing for employees returning from leave. Such testing must comply with prohibitions against disability discrimination: testing should be based on objective reasons to believe there is a question about an em- ployee’s ability to perform essential job functions, rather than on the fact that the employee took leave or on the employee’s status of being disabled. As a related matter, inquiries concerning the reason for an em- ployee’s sick leave must conform to federal and state law prohibiting discrimination based on disability and protecting the right to take sick leave. As a matter of actual practice, testing of job appli- cants appears more prevalent than testing of incumbent employees, with the exception of tests required by fed- 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 functional testing that is required for both job appli- cants and employees returning to work after certain injuries and illnesses.