Dealing with Impairment The CDL, ADA, State Regulations and Fitness for Duty Gregory Gordon Kildare Executive Officer Risk Management LACMTA June 2013 Presentation Overview Why fitness for duty is important Mechanisms to evaluate fitness for duty and pitfalls • The Commercial Drivers License Process (Pre- and Post-Employment) – – – – – Minimum Requirements for a CDL Drug Testing Can the Employer Expand Drug Screening Beyond DOT Minimum Standards? Options for Expanded Testing Legal Pitfalls Including the ADA • Pre-Employment Screening – Agility Testing and the Job Function Analysis – Legal Status Pre Employment • Post-Employment Fitness for Duty Evaluations – – – – Referrals for Cause The Industrial Injury Process Agility Testing Why Post-Employment Screening is Harder Why Fitness for Duty is Important On November 6, 2009 at approximately 6:15 p.m., an MTA bus was traveling southbound on Glendale Avenue, Line 92, when the bus operator fainted and lost control of the bus at the intersection of Fargo Street. The runaway bus collided with a vehicle, a freeway underpass, a retaining wall, a concrete island curb, and finally stopped against a chain link fence along the side of the road. Sixteen passengers onboard the bus suffered injuries as a result of the accident, including Ms. Roongrawee who was the most severely injured. Ms. Roongrawee, fifty-three years old at the time of the accident, suffered multiple fractures, contusions, orthopedic injuries, neurological problems, and psychiatric problems as a result of the accident. The brain CT scan revealed hemorrhaging and contusion of the right cerebral hemisphere with brain swelling as well as multiple compression fractures of the thoracic spine, fracture of the right foot metatarsal and fractures of the second left rib. She underwent multiple surgical procedures, extensive therapy and neurological evaluations. Why Fitness for Duty is Important ROONGRAWEE SETTLEMENT Plaintiff’s Claim of Damages: Past medical specials of approximately $341,000 and a life care plan that includes home care, vocational rehab, and future medical care of approximately $1,000,000; loss of earnings claim of $12,000; and pain and suffering of $2,000,000, for a total of $3,353,000 in potential verdict exposure. Settlement: $2,000,000 $1,600,000 + Other Claims + Bus Damage + Cost of Defense > Why Fitness for Duty is Important Operator’s syncope was the primary cause of the accident. Syncope related to blood sugar problems. Operator had a history of diabetes including insulin use at the time of the accident Why didn’t we catch it? ‘Cause he didn’t disclose it. The Commercial Drivers License What are the minimum federal requirements? • Loss of Limbs? – Loss of Foot, Leg, Hand, Arm, precludes CDL unless SPE is issued • Limb Impairment? – Medical Judgment • Diabetes? – Insulin use precludes CDL. Non-insulin dependent diabetes, medical judgment • Cardiovascular Condition? – Medical Judgment except implantable defibrillators precludes CDL • Respiratory Dysfunction? – Medical Judgment • Hypertension? – Type 3 Hypertension (180/110 BP) precludes CDL until reduced below 140/90 BP. Other rules apply for Type 1 and Type 2 Hypertension but do not preclude issuance of a CDL • No use of a Schedule I drug, Amphetamine, Narcotic or Habit Forming drug unless prescribed by licensed medical practitioner familiar with roles and duties and certifies safety to operate vehicle The Commercial Drivers License What are the minimum federal requirements? • Epilepsy – A prior history (i.e., < 10 years of epileptic episodes or <5 years for a single episode), a current diagnosis of epilepsy and current use of anti-seizure medication preclude a CDL • Rheumatic/Orthopedic/Muscular/Neuromuscular/Vascular Disease – Medical Judgment • Mental Disorders? – Medical Judgment • Vision? – Corrected to 20/40 or better and not colorblind • Hearing? – With or without hearing aid 40 decibels in one ear at 500 Hz, 1,000 Hz and 1,500 Hz • Drug Use? – No use of Schedule I, an amphetamine, a narcotic or other habit-forming drug (a licensed medical doctor can certify some use as not impairing) • Alcoholism? – Medical Judgment The Commercial Drivers License Of these requirements, which are disqualifying? EPILEPSY INSULIN DEPENDENT DIABETES VISION HEARING CDME Requirements for 2014 Commercial motor vehicle drivers in interstate commerce, as of May 21, 2014, must be medically examined and certified by a certified medical examiner listed on the National Registry of Certified Medical Examiners (NRCME). The motor carrier, for exams performed on or after May 21, 2014, must generate a note verifying that the medical examiner utilized by the driver was listed on the National Registry of Certified Medical Examiners. The motor carrier must obtain an original or copy of the medical examiner's certificate issued in accordance with and any medical variance on which the certification is based, and, beginning on or after May 21, 2014, verify the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of issuance of the medical examiner's certificate, and place the records in the driver qualification file, before allowing the driver to operate a CMV at the time of the exam. Not sure if this is applicable to intrastate transit. Testing Under the CDL Does Testing Make Sense for …… EPILEPSY/SEIZURES • No test. Seizures can happen with many disorders • Moderate frequency (1% - 3% of the population) • Treatable (70% of sufferers enter remission on medication) INSULIN DEPENDENT DIABETES • Diabetes testing is complicated – H1AC – Glucose – No Universal Test for Insulin Use Testing Under the CDL TESTING FOR INSULIN DEPENDENT DIABETES (2008) • The World Anti Doping Agency (WADA) is currently seeking a test for insulin abuse based on this technique and so far, research in this area suggests that the technique of looking at MS signatures can discriminate metabolites of lantus insulin (a longacting synthetic insulin) from naturally produced human insulin. However, this method doesn’t seem to work for the urine samples from diabetic patients who have been treated with recombinant human insulin or Levemir, two other commercially available long-acting insulins. This is obviously a major drawback when trying to establish a reliable test to detect insulin abuse. Testing Under the CDL VISION • Good Tests • Cheap • Do It! HEARING • Good Tests (by a trained audiologist) -- NOT the 7 foot whisper test • Cheap • Do It! Drug Testing Requirements REQUIRED DRUG AND ALCOHOL TESTING Pre-employment, post-accident, random, reasonable suspicion (a separate process from the examination) • Marijuana (grass, pot, weed, hash, joint, Acapulco gold) – LEGAL STATUS IRRELEVANT • Cocaine (coke, crack, snow, blow, flake, "C", rock, base) • Opiates - opium and codeine derivatives - (heroin, horse, "H", junk, smack, scag, Miss Emma) • Amphetamines - amphetamines and methamphetamines (uppers, speed, bennies, black beauties, Christmas trees, crystal, mollies, crank, BAM, dexies) • Phencyclidine - PCP - (angel dust, peace pill, hog, supergrass, embalming fluid, rocket fuel, killer weed) Recommended Changes • OTHER LICIT DRUGS RECOMMENDED BY MEDICAL REVIEW BOARD TO FMCSA FOR GENERAL DISQUALIFICATION BUT NOT YET ADOPTED IN REGS – Benzodiazapenes (e.g., Xanax, et al) – Schedule II Medications (i.e., opiates and stimulants such as codeine and ritalin) • OTHER RECOMMENDATIONS BY MEDICAL REVIEW BOARD • Permissible use of a licit controlled drug would require signoff from a certified commercial driver medical examiner (CDME) What Can You Do in the CDL Process • FTA specifically discusses in FAQ and Toolkit on CD that entities governed by the CDL regs may • have a drug formulary that reasonably limits medications beyond those imposed by existing regs. • Indiana DOT • MBTA “Under its own authority, the MBTA will require a urine screen for a urine test for marijuana, cocaine, opiates, phencyclidine (PCP), amphetamines, barbituates, benzodiazepines, methadone, methaqualone, and propoxyphene. This additional test will be conducted under a separate chain of custody from the FTA required test.” • Impose safety standards and testing beyond FTA regs as part of or concurrent with the CDL Exam process. • • • • Ditch the 7 foot whisper test and have a real audiology exam (FTA explicitly permits) LACMTA is considering adding blood test requirement to test for Diabetes Wait for good insulin use tests currently under development Consider using certified medical examiners ONLY Physical Capability Testing • MTA has been performing pre-employment physical capability testing for several years • We prevailed in a legal challenge to the test’s use • MTA v. Webster • We went to great lengths to ensure we reasonably identified physical requirements for Bus Operators. • Job Function Analysis Job Function Analysis (JFA) A JFA should serve as a starting point for developing a physical capability test. A qualified Human Factors expert, biomechanical expert and vocation rehab firm should be hired to do this (example included on CD). FACTOR 1: STRENGTH MOBILITY FREQUENCY N/P I O F TYPICAL DURATION C Stand X < 5% of the time, Brief/intermittent Walk X < 5% of the time, brief (up to 13 minutes, pre-trip inspection). Sit X Continual 55-90 minutes at one time COMMENTS: The Operator will stand/walk to get off to assist someone in a wheel chair, for up to 5 minutes and will stand/walk for pre-trip inspection, 13 minutes. On a typical shift the full-time Operator works 8-12 hours, and will sit from 6 hours, 45 minutes to 7 hours, 40 minutes. The remaining time being used for sign-on, pretrip, and recovery time. Most bus models have basic seats, with some adjustments. Bus Operator Candidate Assessment Test The BOCAT is a qualitative assessment given by MTA supervisors to prospective candidates that have passed all other screenings (copy on the CD). Can Test be Used Post-Employment? We are evaluating whether this test can be used post employment because of obesity and general fitness deterioration over time or because of injury or illness. Fitness for Duty Referrals for Cause 1 • LACMTA may require an employee to undergo a special fitness for duty examination when: – the employee is having difficulty performing work duties in a manner that is safe for the employee, the employee's coworkers, LACMTA or the public; or – the employee poses an imminent and serious safety threat to self or others. • In consultation with the HR Representative, the manager/supervisor investigates the circumstances to determine: – if there is a reasonable explanation for the employee's behavior; – if the H.R. medical records indicate the employee is already under medical treatment; – whether a reasonable suspicion drug and/or alcohol test as described in LACMTA's Drug and Alcohol Free Work Environment (HR 46)policy, should be ordered by a supervisor; – if the employee should be referred to the Employee Assistance Program for an initial assessment and recommendations regarding the need for a fitness for duty examination; or the risk is sufficiently imminent that it warrants removing the employee from duty immediately, and placing on paid leave pending examination. Fitness for Duty Referrals for Cause 2 • Based on the circumstances and information gathered, the HR Representative may convene a roundtable discussion with the manager/supervisor, County Counsel, Employee/Labor Relations Representative and Risk Management, if applicable. The roundtable will be conducted to review all relevant information regarding the employee and to make a determination as to the appropriate course of action. – A fitness for duty examination may not be used as a substitute for discipline, a performance improvement plan, or performance-based disqualification. • If a fitness for duty examination is recommended, the HR Representative will schedule the employee to take a fitness for duty examination with a contracted Clinic. Employees may be required to provide their own relevant medical records to the LACMTA HCP as part of the examination process. Fitness for Duty Referrals for Cause AAR • Fitness for Duty Referrals for cause are: – Complicated – Very rarely performed – More likely to result in employment claims and workers’ compensation claims • The false positives problem Pre-employment vs. Post-employment Rights • Testing Requirements – Job Related and Consistent with Business Necessity • Pre-employment Testing Rights – Applicants – Privacy Issues - Several State Constitutions Guarantee Right to Privacy • Safety Sensitive – Applicants – Privacy Issues - Several State Constitutions Guarantee Right to Privacy Pre-employment vs. Post-employment Rights • Post-employment Testing Rights – Existing Employees – Heightened Scrutiny – Greater Privacy Rights for Existing Employees • Courts More Likely to Defer to Employer Decisions to Collect Information from Applicants than from Existing Employees • Disparate Impact – Disparate Impact • Employer Requires that All Applicants Pass a Physical Agility Test, but the Test Disproportionately Screens Out Women Rules to Know: ADA Balancing Act • EEOC Regulations – Non-ADA – Regs protect against discrimination based on protected classes (e.g., age, race, gender, etc.) – Discuss • Americans with Disability Act (ADA) – Obligation to Reasonably Accommodate Disabilities – Discuss • Health Insurance Portability and Accountability Act (HIPAA) – Guarantees Privacy of Personal Health Information – Discuss • Conflict between ADA, HIPAA and DOT REGS – If a federal law prohibits an employer from hiring a person who takes insulin, the employer would not be liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. Some Good Regulatory Advice • Go to the Fed website and look for guidance. Their missive on setting standards and testing is included on the CD. • Regardless of whether an employee separation/demotion or change in working conditions related to activities discussed today…CDL process, other drug testing, Fitness for Duty Testing, Testing for Cause…. ALWAYS….. • Conduct an ADA interactive process • Keep medical information private Moving Towards a Safer Workforce • If you haven’t implemented a pre-employment screening test for bus operators, you should. – Test should be based on a JFA and should be professionally developed. • Use certified medical examiners to perform required testing under DOT regs. – Audiology testing should be done using equipment by a trained audiologist NOT the 7-foot whisper test. • Add testing for pharmaceuticals that can be abused and impair such as some pain medications and anti-anxiety drugs, possibly others. – Collection needs to be separate from the DOT required testing. Look to FTA for guidance. Moving Towards a Safer Workforce • Consider post-employment physical screening of safety sensitive employees. LACMTA is moving towards this within the next 12 months. • Use the safety sensitive legal standards to your advantage and look for opportunities to strengthen physical standards. – e.g., we dramatically increased physical requirements when we began to provide patron assistance in boarding wheelchairs on buses References • LACMTA Fitness For Duty – Fitness For Duty Policy – Policy Study by Dr. Hartenbaum • Bus Operator Agility Testing – BOCAT Evaluation Form – Agility Test Release Form • Guidance – ADA Enforcement Guidance – FTA Medication Toolkit – FTA Medication Toolkit Frequently Asked Questions • Case Studies – FEHA Case: Hines v. LACMTA – Assault Case: Berger v. Southern Pacific Co. Questions?