The U.S. Court of Appeals for the Eighth Circuit recently ruled that requiring truck drivers with a body mass index (BMI) of 35 or greater to submit to a sleep study, to determine whether they have obstructive sleep apnea, was a permissible medical examination.
All commercial truck drivers are bound by the U.S. Department of Transportation's (DOT) Federal Motor Carrier Safety Administration (FMCSA) regulations and must get medical certifications from FMCSA-certified examiners every two years. 49 C.F.R. §§ 391.43(a), 391.45(b)(1). During the DOT physical, the examiner measures, height and weight, takes a health history, tests vision, hearing, blood pressure and urine and physically examines numerous body systems. 49 C.F.R. §391.43. Without a DOT certification, drivers cannot lawfully drive. 49 C.F.R. §391.41(a).
Current DOT physicals do not require an additional medical examination to screen for obstructive sleep apnea based on a driver's BMI. However, the Medical Review Board (MRB) and the Motor Carrier Safety Advisory Committee (MCSAC) have recommended that FMSCA change its certification standards to include testing for obstructive sleep apnea. Individuals with sleep apnea temporarily stop breathing during sleep. The MRB and MCSAC have recommended screening for sleep apnea to reduce the risks of drivers who have obstructive sleep apnea having daytime sleepiness.
Crete Carrier Corporation instituted a policy requiring all drivers with a BMI of 35 and greater to get medical examinations to determine whether they had obstructive sleep apnea. The plaintiff, Robert J. Parker, refused to undergo the sleep study and Crete stopped giving him work. Parker sued Crete alleging violations of the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. Parker claimed the sleep study requirement was an unlawful medical examination. He also argued that he should not have to submit to the examination because (1) he had no documented sleep issues at work; (2) he had received his DOT certification; (3) he was awarded for accident free driving and was named a top trainer; and (4) his personal medical provider did not feel the sleep study was medically necessary. The issue before the Eighth Circuit Court was whether the sleep study was a permissible medical examination under the ADA.
The ADA prohibits employers from "require[ing] a medical examination unless such examination . . . is shown to be job-related and consistent with business necessity." 42 U.S.C. §12112(d)(4)(A). Employers have the burden of showing that the exam is job-related and the business necessity "is vital to the business and the request for a medical examination 'is no broader or more intrusive than necessary.'" The Eighth Circuit found the examination was job-related because it dealt with a condition that impairs a drivers' ability to operate their vehicles, and was consistent with business necessity because the examination was necessary to determine whether an individual has obstructive sleep apnea, "a condition that poses a public safety hazard by increasing the risk of motor vehicle accidents." The Court also rejected Parker's arguments that he should have been excused from the examination based on his unique characteristics finding that none of those characteristics established that he did not suffer from sleep apnea.
Parker's perceived disability claim was also rejected because the sleep study requirement was lawful and not giving Parker work when he refused to submit to the study was a legitimate and non-discriminatory reason that did not violate the ADA.
Comment: Experts estimate that as many as one in five commercial truck drivers suffer from obstructive sleep apnea. There is often tension between the enhanced driver testing requirements and the risk of being sued for discrimination based on disability and/or perceived disabilities. Trucking companies should ensure that any driver testing policies for a subset of drivers would constitute a business necessity in the eyes of the courts.
Chelsea R. Seidel