The definitions related to individuals with disabilities and exceptions to those definitions included in Policy DAA (Equal Employment Opportunity) shall be used in applying and interpreting this policy and any policy adopted in conjunction with this policy.
SCHOOL BUS DRIVERS
A person shall not drive a school bus, school activity bus, or multifunction school activity bus unless he or she is physically qualified to do so. Each school bus driver shall undergo and successfully complete an annual physical examination in compliance with the requirements of 49 CFR 391.41 and 391.43, which list those physical and mental conditions for which the medical examiner is directed to disqualify an applicant. A driver shall not operate a school bus, school activity bus, or multifunction school activity bus unless he or she has possession of the original or photographic copy of the medical examiner’s certificate stating that the driver is physically qualified to drive a school activity bus, or multifunction school activity bus. Transp. Code 521.022; 37 TAC 14.12
A person disqualified on the basis of the medical examination may request special consideration in accordance with 37 TAC 14.13.
BLOODBORNE PATHOGEN CONTROL
TSBVI employs employees who provide services in a public school facility providing health care-related services who have a risk of exposure to blood or other material potentially containing bloodborne pathogens in connection with exposure to sharps. As such the School shall comply with the minimum standards set by the Texas Department of State Health Services (TDSHS).
A “Sharp” or “Sharps” means an object used or encountered in a health-care setting that can be reasonably anticipated to penetrate the skin or any other part of the body and to result in an exposure incident, including a needle device, a scalpel, a lancet, a piece of broken glass, a broken capillary tube, an exposed end of a dental wire, or a dental knife, drill, or bur.
Exposure Control Plan
The TDSHS has developed an exposure control plan as a model plan to achieve the minimum standards in Health and Safety Code 81.304. The plan is designed to minimize exposure of employees to bloodborne pathogens and includes policies relating to occupational exposure to bloodborne pathogens, training and educational requirements for employees, measures to increase vaccination of employees, and increased use of personnel protective equipment by employees.
The TDSHS Bloodborne Pathogens Exposure Control Plan requires the School to:
- Develop, review annually, update as necessary, and document its actions regarding a comprehensive exposure control plan appropriate to the School and its particular facilities;
- Provide, at School expense, personal protective equipment and Hepatitis B vaccinations to affected employees, and if an employee declines to be vaccinated, maintain a record of the employee’s written refusal;
- Provide to affected employees pre-service and annual refresher training as described in the TDSHS Exposure Control Plan;
- Record all exposure incidents (e.g., “sticks” by needles or other “sharps”) in a sharps injury log and report the sharps injury to TDSHS on a standardized form; and
- Provide a post-exposure evaluation and follow up with an employee who has a sharps injury.
Health and Safety Code 81.301-.307; 25 TAC Chapter 96
COST OF TESTING AFTER ACCIDENTAL EXPOSURE
If a certified emergency medical services provider, a firefighter, a peace officer, or a first responder who renders assistance at the scene of an emergency or during transport to the hospital is accidentally exposed to blood or other body fluids of a patient, the hospital to which the patient is transported shall take reasonable steps to test the patient for hepatitis B or hepatitis C, HIV or any reportable disease. If the School employs the person, or the person works as a volunteer for the School in connection with rendering the assistance, TSBVI is responsible for paying the costs of the test(s). A test conducted under this section may be performed without the patient’s specific consent. Health and Safety Code 81.095(b),(c)
Any receipt of genetic information in response to a request for medical information shall be deemed as inadvertent if the School uses language such as that at 29 CFR 1635.8(b)(1)(i)(B).
29 CFR 1635.8(b)(1)(i)(A) [See DAB]
PRE-EMPLOYMENT INQUIRIES AND EMPLOYMENT ENTRANCE EXAMINATIONS
The School shall not conduct a medical examination, or make inquiries of a job applicant, as to whether such applicant is an individual with a disability, or as to the nature or severity of a disability, except as provided below. However, the School is permitted to make pre-employment inquiries into the ability of an applicant to perform job-related functions, such as asking an applicant to describe, or demonstrate, how (with or without reasonable accommodation) the applicant will be able to perform job-related functions. 42 U.S.C. 12112(d)(2); 29 CFR 1630.14(a)
The School may require a medical examination (and/or inquiry) after an offer of employment has been made to a job applicant and prior to the beginning of employment duties, and may condition the offer on the results of such examination (and/or inquiry), provided all entering employees in the same job category are subjected to such an examination (and/or inquiry), regardless of disability.
The results of a pre-employment medical examination shall be used only to determine the applicant’s ability to perform job-related functions.
42 U.S.C. 12112(d)(3); 29 CFR 1630.14(b)
Information obtained regarding the medical condition, or history, of the applicant shall be collected and maintained on separate forms and in separate medical files and shall be treated as confidential medical records. However, supervisors and managers may be informed regarding necessary restrictions on the employee’s work, or duties, and necessary accommodations; first aid and safety personnel may be informed when appropriate, if the disability may require emergency treatment. 29 CFR 1630.14(b),(c)
EXAMINATION DURING EMPLOYMENT
TSBVI may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity and may make inquiries into the ability of an employee to perform job-related functions.
Consistent with business necessity, the Superintendent may require an employee to present medical information regarding the employee’s ability to perform the regular duties of his/her position at any time during employment. If the medical information indicates that the employee is not currently able to perform the duties of the position, the Superintendent may require the employee to take a leave of absence until the employee submits medical information that (s)he is able to perform the duties of the position. During the period of the leave of absence, the employee must use all applicable forms of paid leave and, after paid leave is exhausted, shall be placed on leave without pay for the remainder of the absence. An employee on a leave of absence under this provision may be entitled to the benefits of the Family and Medical Leave Act (FMLA, and the leave may be designated as FMLA leave. (See also DEC). After an extended period of time, the School’s needs may require that the employee on extended leave of absence be replaced, but such decision requires an extensive legal review before the employee is notified.
Placement on Temporary Disability
The Board may adopt a policy for placing an educator on leave of absence for temporary disability if, in the Board’s judgment and in consultation with a physician who has performed a thorough medical examination of the educator, the educator’s condition interferes with the performance of regular duties. Such a policy must reserve to the educator the right to present to the Board testimony or other information relevant to the educator’s fitness to continue the performance of regular duties. [See DEC]
42 U.S.C. 12112(c)(3)-(4); 29 CFR 1630.14(c); Education Code 21.409(c)
The School may not require an employee to undergo medical procedures or tests for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS unless the procedure is necessary as a bona fide occupational qualification, and there exists no less discriminatory means of satisfying the occupational qualification. “Bona fide occupational qualification” means a qualification that is reasonably related to the satisfactory performance of job duties and for which there is reasonable cause to believe that a person who tests positive would be unable to perform satisfactorily the job duties safely.
Health and Safety Code 81.101(3), 81.102(a)(5)(a)
Amended: 3/12/82, 11/12/87, 1/26/90, 1/29/93, 11/19/93, 11/17/95, 11/14/97, 1/28/00, 3/26/02, 1/28/05, 4/5/13, 11/15/19