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In the wake of Hours of Service rule exemptions, ready mixed producers are following Federal Motor Carrier Safety Administration (FMCSA) work-in-progress guidance on testing of drivers for risk of obstructive sleep apnea (OSA). The condition attends obesity and sees tissues around the upper respiratory tract relax and physically block the airway. The FMCSA Medical Review Board links the condition to daytime sleepiness, making truck drivers more accident prone.

The U.S. Court of Appeals for the Eighth Circuit, St. Louis, has brought clarity to fleet owners attentive to federal agencies, but exposed to attorneys and clients invoking the Americans With Disabilities Act (ADA) as an end run around guidance or rules. In early October, a three-judge panel affirmed a decision favoring Lincoln, Neb.-based Crete Carrier Corp., which had defended a policy subjecting drivers with body mass index (BMI) of 35 or higher to testing for risk of OSA. In pounds and inches, the Centers for Disease Control and Prevention calculates the index as a person’s [weight/(height)2] x 703. The agency classifies individuals with BMI above 30 as “obese.”

A suit in the U.S. District Court for the District of Nebraska, Lincoln, stemmed from Crete Carrier’s halting of work for a driver who—despite exhibiting a 35-plus BMI on his most recent Department of Transportation physical exam—refused to participate in an in-lab sleep study to determine OSA likelihood and any course of employer-provided treatment. Beginning in 2010, the trucking giant phased in OSA testing for 5,000-plus drivers throughout its terminal network. Federal court documents show the defendant established how a) untreated OSA tends to impair driving skills and increase motor vehicle accident risk 1.2- to 4.9-fold; and, b) a sleep study is the only way to confirm or rule out an OSA diagnosis.

The plaintiff alleged that Crete Carrier policy violated ADA by requiring the sleep examination and discriminating on the basis of a perceived disability. The Appellate Court panel examined the onerous law’s narrow provisions for employers contending with a risk such as OSA, determining: “The ADA prohibits employers from ‘requir[ing] a medical examination … unless such examination … is shown to be job-related and consistent with business necessity.’ When an employer requires a medical exam of its employees, the employer has the burden of showing that the exam is job-related and that the asserted ‘business necessity’ is vital and the request for a medical examination or inquiry is no broader or more intrusive than necessary.”

“The sleep study requirement is job-related because it deals with a condition that impairs drivers’ abilities to operate their vehicles,” the judges conclude. “It is consistent with business necessity: An examination is 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 in-lab sleep study is no broader or more intrusive than necessary because an examination is needed to diagnose obstructive sleep apnea and an in-lab sleep study is the best way to diagnose it. Crete was reasonable to define the class as drivers with BMIs of 35 or above because (1) it has a basis for concluding that class poses a safety risk given the correlation between high BMIs and obstructive sleep apnea, and (2) the sleep study requirement allows Crete to decrease the risk posed by that class by ensuring that drivers with sleep apnea get treatment.”

The Appellate Court opinion is important to commercial trucking interests, which have struggled with how to address sleep apnea-prone drivers, notes employment law attorney Nancy Delogu, a shareholder in the District of Columbia office of Littler Mendelson P.C. Outside transportation, she concludes, the court “provides a clear roadmap on what any employer must do to ensure that its medical testing program meets ADA requirements.”

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