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

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58 test.537 The plaintiff had failed the BOCAT because her torso touched the steering wheel and her thighs hung over the side of the seat, which prevented her from ac- cessing bus controls in the prescribed manner. When she had taken the test shortly thereafter she had again failed. The plaintiff then sued under the California nondiscrimination statute, alleging physical disability and genetic characteristic discrimination, harassment, and retaliation, both counts premised on her obesity. LA Metro argued that obesity is not a disability under California law unless it has a physiological cause.538 The court agreed that either for actual disability or being regarded as having a disability, the underlying condi- tion must have a physiological cause to be protected under California law. However, the court held that the plaintiff was not required to show that the employer believed that her obesity was the result of a physiologi- cal condition, merely that the obesity was so caused. The plaintiff also argued that LA Metro’s admini- stration of the BOCAT violated the equal protection clauses of the California and federal constitutions be- cause LA Metro required obese job applicants to pass the BOCAT, but did not require employees who became obese after being hired to pass the BOCAT, thus treat- ing job applicants differently than incumbent employ- ees. This argument rested on the premise that job ap- plicants and incumbent employees are similarly situated. LA Metro argued that it was justified in treat- ing applicants differently than incumbent employees, because LA Metro can monitor its employees through passenger complaints, performance monitoring by su- pervisors, mystery rider reports, and fitness-for-duty exams, so that decreases in functionality become readily apparent, whereas applicants are not subject to moni- toring other than through preemployment testing. LA Metro relied on Loder, supra, in its argument that it was permissible to distinguish between applicants and employees under these circumstances. The plaintiff argued that Loder was distinguishable because there the employer showed a connection between substance abuse and employee productivity or absenteeism, while LA Metro had allegedly failed to show a connection be- tween the BOCAT and safety. The appellate court did not rule on the plaintiff’s equal protection claim because she had failed to raise it at the trial level. The equal protection clause is meant to prevent the government from arbitrarily discriminat- ing among its citizens, requiring instead that similarly situated persons must be treated equally under the law.539 Thus an equal protection challenge to a testing requirement that applies to job applicants but not to incumbent employees rests on the assertion that appli- cants and employees are similarly situated and that it 537 See V. Transit Agency Practices, infra this digest. 538 Hines v. L.A. County Metro. Transp. Auth., B208389 (Cal. App. 2009, Nov. 6, 2009), at 3–18, citing Cassista v. Cmty. Foods, Inc., 5 Cal. 4th 1050, 22 Cal. Rptr. 2d 287 (Cal. 1993). 539 Cooley v. Superior Court, 29 Cal. 4th 228, 253, 57 P.3d 654, 127 Cal. Rptr. 2d 177, 196 (Cal. 2002). is arbitrary to treat them differently in terms of testing requirements. The BOCAT test does appear to differ from testing in say, Lanning, where a requirement was imposed on applicants that incumbent employees were not required to meet. In LA Metro’s situation, the BOCAT purportedly applies a standard that is also re- quired for incumbent employees, but measured through other means. V. TRANSIT AGENCY PRACTICES The author queried 21 of the largest bus properties about various aspects of physical ability testing: preem- ployment tests (requirements and limitations), periodic employee tests (requirements and limitations), post- incident tests (requirements and limitations), school bus requirements, drug and alcohol policies, post-illness testing, and lifestyle testing. Fourteen of the agencies responded to the questionnaire (see Appendix C); a 15th did not complete the questionnaire but provided infor- mation about physical ability testing at the agency. At least for these respondents, spirometry and mandated drug and alcohol testing are the most prevalent forms of physical testing. Several of the respondent agencies do engage in other physical ability testing, as described below. None of the responding agencies indicated that they impose lifestyle restrictions such as nonwork use of tobacco or weight limits (except as BMI implicates sleep apnea or as weight is directly related to equip- ment requirements, as described below).540 None of the responding agencies indicated that state school bus re- quirements applied to their drivers. Preemployment physicals appear more broad-based than employee physicals, which seem to be more limited to CDL hold- ers and safety-related employees. Fit testing seems to be imposed on job applicants rather than incumbent employees. Other testing, such as isokinetic testing of required job movements, may be required of incumbent employees under specified circumstances, such as re- turn from back injury when the agency conducts testing to measure back muscle functionality. The descriptions of transit agency practices in this section are based on questionnaire responses, as well as additional primary and secondary research on the prac- tices of respondents and other transit agencies. The author was not able to determine the prevalence na- tionally of any of the practices described in this section. In fact, as responsibilities for conducting employment testing are sometimes diffuse within an organization, 540 While details were not available, the MBTA reported ad- dressing obesity for both applicants and incumbent employees if obesity could be related to sleep apnea. Response to TCRP Questionnaire from Kate LeGrow, Director, Occupational Health Services, Questions II.B., Source of requirements for conducting pre-employment tests: Specific pre-employment tests and standards for rail/bus operators; II.C. Source of require- ments for conducting pre-employment tests: Specific pre- employment tests and standards for mechanics; and IV.B., Tests and standards for current employees: Specific employee tests and standards.

59 particularly for the larger transit agencies, the agencies cited below may conduct other testing that respondents were not aware of. Nonetheless, the descriptions do provide illustrations of different possible approaches to physical ability testing. Tests in use range from relatively simple fit test- ing—that is, conducting tests to literally determine whether the applicant can fit comfortably in the driver compartment; make necessary adjustments to the seat, steering wheel, and mirrors’ and safely operate controls as required—to tests designed by industrial medicine professionals to measure physical ability. A. Chicago Transit Authority541 The Chicago Transit Authority (CTA) (www.transit chicago.com/) has begun a process of measuring job ap- plicants’ physical capability compared with physical job demands using isokinetic testing. For each covered po- sition an ergonomist performed a job evaluation and quantified movements required for essential job func- tions. The screening test is performed by a consultant who uses isokinetic equipment to measure the job ap- plicant’s ability to make the required movements. The physical areas tested are limited to the back, knees, and shoulders, the areas where most on-the-job injuries oc- cur. Applicants who do not receive a passing score on the test are not eligible to proceed with the hiring proc- ess. Thus far there has been a 7 percent failure rate. CTA is unaware of any legal challenges to this testing program in the approximately 30 months it has been in operation. Thus far the positions of bus operator, trackmen, and several other positions are subject to screening. CTA’s goal is to have a total of 10 positions certified for this isokinetic screening by the end of 2010. The screening is not used for return-to-work due to the agency’s collec- tive bargaining agreement. From a physical perspec- tive, CTA believes they are getting a higher quality of applicants since members of the applicant pool have become aware of these new requirements. CTA also requires additional physical ability testing during training for jobs with specific strenuous physical requirements. These tests are generally conducted us- ing actual job equipment. For example, if a job requires an employee to lift a 100-lb bucket as a job requirement, that lifting will be included as a mandatory require- ment during training. Conducting this testing during the training process allows CTA to ensure that proba- tionary hires are trained on the appropriate techniques for performing lifting and other potentially difficult tasks. Probationary hires that are not able to perform the physical requirements after training are not re- tained. 541 Information based on CTA’s response to TCRP Question- naire and telephone interviews with Larry Wall, General Man- ager, CTA’s Wellness Services, Nov. 20, 2009, and Dec. 10, 2009. In addition, CTA buses have a 400-lb limit for the driver’s seat, so applicants for bus operator positions cannot exceed 400 lb in weight. B. Denver Regional Transportation District542 Per agency policy, Denver Regional Transportation District (www-rtd-denver.com/) (RTD) has implemented physical ability testing requirements for rail and bus operators, mechanics, service and cleaning employees, sign maintainers, rail laborers, track maintainers, and farebox workers. The tests are intended to reduce work- related injuries by ensuring that applicants and em- ployees have the physical ability to perform specific essential job tasks that have been shown to cause inju- ries. The agency contracted with a physical therapy and rehabilitation group to develop and administer the tests, which are criterion-based. The contractor used job descriptions and direct observation to break down the movements required to perform essential job tasks that may lead to work-related injury. The contractor then determined the required force or flexibility needed to perform those tasks. The tests are performed using physical therapy equipment that measures the force or flexibility needed for each required task. Bus and rail operators are tested for strength, agility, and sit-and- reach ability; mechanics are tested for those abilities and grasping ability. Testing requirements for those and all other positions tested are based on specific job requirements, including being able to physically make the required movements for the job (e.g., squeeze into a tight space, fit through a manhole, climb ladders, etc.). The tests are used as a screening mechanism before a conditional offer of employment is made. Physical ability tests are also required if an employee is in- jured—whether or not the injury is work-related—and is out of work for more than 30 days or requires surgery due to the injury. Sick leave alone is not a trigger for physical ability testing. As of November 2009, there had been no legal chal- lenge to Denver RTD’s physical ability testing program. Workers’ compensation costs have been reduced by 50 percent over 5 years. C. Intercity Transit543 Intercity Transit, Olympia, Washington (www.inter citytransit.com/Pages/default.aspx), conducts a short fit test as a screening for potential bus operators. The test is conducted once annually when the agency accepts new operator applications. Using in-service buses and vans, the agency requires candidates to demonstrate that they can fit in the driver compartment (adjust the seat and mirror) and that they can kneel down and se- 542 Information based on RTD’s response to TCRP Question- naire and telephone interview with Jim Jacobsen, RTD Man- ager of Wellness & Rehabilitation, Nov. 9, 2009. 543 Information is based on telephone interviews with Ed Ruttledge, HR Manager, Nov. 2, 2009.

60 cure a wheelchair appropriately. Lifting the wheelchair manually is not required. D. King County Metro Transit544 King County Metro Transit, Seattle (http://metro. kingcounty.gov/), had required a transit operator pre- employment work test (now discontinued for budgetary reasons) as part of its preemployment physical. The test included a series of tasks related to essential job func- tions. The tasks replicated or simulated actual work tasks. For example, the test included a treadmill test that simulated the walk from job check-in to the bus, carrying a wheel block and securing it behind a tire, doing a trolley pulley and crank simulation, and walk- ing for 60 ft in less than 18 seconds to simulate the task of being able to walk the length of the bus. The work test had a low failure rate, estimated be- tween 0.5 and 0.75 percent of applicants. It is also esti- mated that if the work test avoided one workers’ com- pensation claim, that reduction would pay for at least 3 years of work tests. The agency currently requires performance-based physical capacities evaluations (PBPCEs)545 when there is an objective concern about an employee’s ability to physically perform required job functions. The PBPCE is conducted by a medical professional contracted by the agency. The need for a PBPCE is made on a case-by- case determination, based on a quantifiable observation by the employee’s supervisor concerning the safety of the employee’s job performance. The agency’s Transit Disability Services office and legal counsel must clear a request for a PBPCE to ensure compliance with legal requirements and the agency’s collective bargaining agreement. Unlike the work test, the PBPCE process applies to all job categories. E. Lane Transit District546 Lane Transit District (LTD), Eugene, Oregon (www.ltd.org), includes strength and agility tests as part of its preemployment physical for bus driver, me- chanics, general service workers, cleaners, and facilities 544 Information is based on telephone interviews with Peter Hu, Transit Disability Services, King County Metro Transit Human Resources, Nov. 6, 2009, and Dec. 3, 2009, as well as a review of the physical capacities evaluation (PCE) form. 545 The agency requires a PCE upon return from medical leave for physical injury. The PCE is an evaluation performed by the employee’s physician. The PCE is based on a form de- veloped by the Washington State Department of Labor and Industry for workers’ compensation claims. The form covers a number of physical movements, such as sitting, standing, bending, stooping, and reaching to various heights. The physi- cian evaluates whether the employee has any restrictions in performing the various movements covered by the PCE. The agency then compares the PCE to the employee’s job analysis to determine whether the employee can resume full job func- tions. 546 Information is based on a telephone interview with David Collier, LTD Human Resources, Nov. 9, 2009, and a review of a description of the testing provided by LTD. maintenance workers. The tests are designed by occu- pational medicine professionals based on the physical requirements of the jobs in question, including direct observation of employees. They cover such abilities as strength, bending, and stooping. The purpose of the tests is to ensure that applicants have the physical ca- pacity to perform basic job functions; the failure rate has been extremely low. For example, the Essential Function Test for Bus Operators consists of 10 tasks performed on equipment used to simulate various essential job functions: grip strength, simulating the grip strength required to drive, steer, and use hand controls; pinch strength, simulating pinch strength required to operate controls, punch transfers, punch buttons, flip controls; range of motion, simulating flexibility required to sit, stand, reach, ro- tate neck, and use foot pedals while operating the vehi- cle; motion test, simulating repetitive use of left hand and wrist to open and close bus door; climbing 12-in. step, 20 repetitions, simulating climbing into and out of bus; timed foot reaction, simulating eye and foot coordi- nation and speed required to drive bus and stop quickly in emergency; bend/squat/kneel with wheelchair, simu- lating postures required to secure a wheelchair; sit/rotate/lean/reach, simulating posture required to drive, watch for traffic, reach controls, and operate bus; depress/hold brake pedal, simulating strength required to operate foot controls; and grasp and turn steering wheel, simulating driving. The test administrators demonstrate the tasks before applicants are required to perform them. Some of the tasks, such as the wheel- chair secure, allow for an unrecorded practice trial. LTD also requires a fitness-for-duty exam for em- ployees returning to work from a non-work-related in- jury after more than 30 days, where the injury is such that it might affect physical ability to perform essential job functions. Back, shoulder, or neck injuries are the major triggering injuries. The fitness-for-duty exam includes the physical ability test required for job appli- cants. These exams are intended to screen for problems that might result in subsequent workers’ compensation claims. In the case of work-related injuries, the doctor’s release to return to work is deemed sufficient. F. LA Metro547 LA Metro (www.metro.net/index.asp) uses a BOCAT for bus operator trainee candidates whose physical exam results indicate they may have some difficulty with various physical requirements for operating the bus, such as adjusting mirrors, having sufficient field of vision, and being able to safely turn the steering wheel. The BOCAT is required for candidates with a BMI equal to or greater than 35 percent, who are 5 ft 2 in. and shorter or are 6 ft 3 in. and taller. The assessment 547 This summary is based on LA Metro’s response to the TCRP Questionnaire, the agency’s written description of the BOCAT and rail operator tests, and telephone conversations with Mary Nugent and Rosalin Chong in LA Metro’s Human Resources Department on November 10, 2009.

61 evaluates seat adjustment; operator positioning (includ- ing whether the candidate can perform various required maneuvers without the candidate’s torso touching the steering wheel); candidate performance (including maintaining appropriate position while performing tasks such as activating floor pedals and signals and releasing and applying handbrake); bus interior inspec- tion (including manually lifting the wheelchair ramp in and out on a low-floor bus); and bus exterior inspection (including operating the bike rack and kneeling down and returning to standing position for required inspec- tion of fuel tank and underbody). To date this test has been challenged in court, unsuccessfully.548 LA Metro also requires applicants for rail opera- tional positions pass a rail physical agility test after a conditional offer of employment is made. The assess- ment covers the following abilities: • Enter rail vehicle at side door. • Exit rail vehicle from side door. • Enter rail vehicle at “F” end door from the ballast. • Sit in operator’s chair and operate various controls, including adjusting seat. • Operate console controls while monitoring side door activity. • Operate emergency door controls and cut out leer. • Manually operate track switches on mainline and yard. • Access emergency walkway from track level. • Open emergency exits from mainline underground tunnel. • Climb and descend emergency stairway. • Step over deenergized contact rail section. • Walk guideway without fear. • Manually raise and lower pantograph. The candidate must also walk the enclosed tunnel length to demonstrate lack of claustrophobia and fear of the dark. The instructor must demonstrate all tasks before candidates perform them. The protocol provides instructions for each task. Some of the instructions in- volve some judgment on the part of the instructor, such as requiring that the candidate demonstrate that the task “can be done safely and repeatedly.” LA Metro requires a qualifying performance test for mechanics and service attendants as part of the inter- view process. The test measures lifting ability and technique. Applicants must sign a waiver. Both of those positions require 2 years of experience in relevant jobs, so candidates are expected to already have the skill being tested. The test requires applicants to lift a 50-lb box and carry it for a prescribed distance. LA Metro has had a very low failure rate for this test. 548 See IV.B.2., Obesity, supra this digest. G. Metro Transit549 Metro Transit, Minneapolis (www.metrotransit.org/), does not conduct nonmedical, functional, preemploy- ment testing of candidates’ physical capacity to perform essential job functions. The agency formerly conducted preemployment agility testing for bus operators, requir- ing candidates to get in the seat, deploy the wheelchair lift, put a wheelchair on the lift, and perform other driv- ing maneuvers. The test was not considered cost effec- tive and has been discontinued. The agency does in- clude upper extremity and back screening as part of its post-offer preemployment physical exam. In addition, the agency’s USDOT physical now includes screening for obstructive sleep apnea. Sleep studies are recom- mended based on patient history or on meeting two of the following three criteria: BMI (35 or greater), neck circumference (43 cm or greater), and blood pressure (uncontrolled or controlled with two or more medica- tions). Presence of a sleep disorder, treated or un- treated, will affect the duration of the medical card is- sued by the agency. The agency conducts fitness for duty exams as re- quired when an employee has been away from work for any condition that might affect safe job performance. The examining physician, a board-certified occupational medicine physician, refers to the employee’s job descrip- tion in conducting the exam. H. Tri-Met550 Tri-Met, Portland (http://trimet.org/), requires appli- cants for bus operator positions to pass a Bus Operator Work Demonstration Test, conducted after a conditional offer of employment is made. The test consists of 11 tasks: adjusting the operator’s seat, fastening the seat belt, maintaining proper back contact while grasping the steering wheel, properly turning the steering wheel, properly depressing the brake and accelerator pedals, properly operating the turn signals, fully disengaging and engaging the parking brake, properly removing and returning the handset, identifying the color of object held 42 in. in front of the bus, properly opening the emergency window, and securing a wheelchair within 3 minutes, as demonstrated by the test administrator. The failure rate for this test, at least from 2006 to 2009, has been low to nonexistent. Current personnel are not aware of any challenges to the test. Tri-Met does not have an equivalent preemployment work test for service 549 Based on telephone interview with Connie DeVolder, Human Resources Manager for Occupational Health, Metro- politan Council, Nov. 6, 2009, and email, Nov. 9, 2009; tele- phone interview with Julie Johanson, Deputy Chief Operating Officer, Nov. 2009. 550 Information is based on Tri-Met’s response to the TCRP Questionnaire and telephone interviews with Dr. James Har- ris, contract provider of preemployment medical services for Tri-Met; Richard Alsos, Training Supervisor, Tri-Met Bus Transportation Department; and Carol Crossen, Tri-Met Hu- man Resources Representative.