Request By:
Mr. Leonard R. Pyle
Assistant Superintendent
Crittenden County Schools
P.O. Box 362
Marion, Kentucky 42064
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested an opinion from this office interpreting KRS 161.145 and KRS 336.220 as they relate to school bus drivers.
KRS 161.145, first, enacted in 1980, now reads in pertinent part:
(1) When a physical examination is required as a condition of employment in classified personnel, excluding bus drivers, the examination shall be provided at no cost to the employee by the board. The examination shall be provided by the county health department if appropriate health department personnel are available.
(2) If the employee elects to be examined by a private physician, the cost of examination shall be borne by employee.
(3) Each examination shall include a test for tuberculosis and shall be conducted prior to August 1 of the employable year in which the person is employed.
Additional requirements pertaining to school bus drivers are set forth in 702 KAR 5:080. Section 1 states, in pertinent part:
All local boards of education shall require annual medical examination of each school bus driver and drivers of special vehicles used to transport school children to and from school and such events related to such schools . . . .
Section 5 states:
The board, at its discretion, may require a school bus driver to pass a routine physical examination or a special type physical examination more often than annually. The school bus driver shall have a current physical fitness certificate on file in the district superintendent's office.
The Crittenden County Board of Education currently does not pay for a physical examination for any school bus driver based on KRS 161.145. Some of the drivers have asked the Board of Education to do so, and the question has arisen as to whether payment for physical examinations of employees would be required pursuant to KRS 336.220.
KRS 336.220 states:
(1) It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of employment.
(2) As used in this section:
(a) The term 'employer' means and includes an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.
(b) The term 'employee' means and includes every person who may be permitted, required or directed by any employer, as defined in paragraph (a) of this subsection, in consideration of direct or indirect gain or profit, to engage in any employment.
It is clear from the definition of "employer" that the statute covers employment in the private sector but not public employment. Moreover, KRS 161.145 more specifically addresses the requirements for payment of physical examinations of classified personnel employed by school districts. "When two statutes concern the same subject matter, one generally and the other specifically, the specific statute prevails."
Kamp Schaefer v. Commonwealth ex rel. Kamp Schaefer, Ky., 746 S.W.2d 567 (1987).
In conclusion, KRS 336.220 does not apply to public employers. KRS 161.145 controls on the question presented and does not require the Board of Education to pay the cost of physical examinations of bus drivers who work for the Board.