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Legal Research Digest 34 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration november 2010 TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES aPPLICaTION OF PHYSICaL aBILITY TESTING TO CURRENT wORKFORCE OF TRaNSIT EMPLOYEES This report was prepared under TCRp project J-5, âLegal aspects of Transit and intermodal Transportation programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Jocelyn K. Waite, Waite & associates. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The Problem and Its Solution The nationâs 6,000 plus transit agencies need to have access to a program that can provide authoritatively researched, specific, limited-scope studies of legal is- sues and problems having national significance and application to their business. Some transit programs involve legal problems and issues that are not shared with other modes; as, for example, compliance with transit-equipment and operations guidelines, FTA fi- nancing initiatives, private-sector programs, and labor or environmental standards relating to transit opera- tions. Also, much of the information that is needed by transit attorneys to address legal concerns is scattered and fragmented. Consequently, it would be helpful to the transit lawyer to have well-resourced and well- documented reports on specific legal topics available to the transit legal community. The Legal Research Digests (LRDs) are developed to assist transit attorneys in dealing with the myriad of initiatives and problems associated with transit start-up and operations, as well as with day-to-day le- gal work. The LRDs address such issues as eminent domain, civil rights, constitutional rights, contract- ing, environmental concerns, labor, procurement, risk management, security, tort liability, and zoning. The transit legal research, when conducted through the TRBâs legal studies process, either collects primary data that generally are not available elsewhere or per- forms analysis of existing literature. applications 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 driverâs license (CDL), drug and alcohol testing as mandated by federal regu- lations, and hearing and spirometry tests required to meet health and safety standards. Transit employ- eesâ ability to perform physical portions of essential job functions may also be assessed through physical ability testing. Moreover, transit agencies may have concerns about their employeesâ health and overall physical fitness as those factors affect productivity, health care costs, and workersâ compensation costs, which may lead transit agencies to consider imposing lifestyle restrictions related to employee weight and off-duty use of tobacco, including instituting physical testing to measure compliance with those restrictions. Finally, employers may wish to require assessments of physical ability when employees return to work af- ter an injury or prolonged absence. The purpose of this report is to address the legal ramifications of instituting physical ability testing, and of exceeding government requirements related to physical ability (such as visual acuity requirements for a CDL). The report also addresses the relationship between such testing and medical inquiries and ex- aminations. Legal issues discussed include Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act, the Family and Medical Leave Act of 1993, and related state requirements. This report should be useful to transit administra- tors, human resources officials, labor officials, unions, employee relations specialists, employees, policy makers, and others. Responsible Senior Program Officer: Gwen Chisholm Smith