ADA proves no shield for obese driver refusing sleep apnea test

Sources: U.S. Court of Appeals for the Eighth Circuit, St. Louis; Littler P.C., San Francisco; CP staff

A three-judge Appellate Court panel has affirmed a U.S. District Court 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 obstructive sleep apnea (OSA)—where tissues around the upper respiratory tract relax and physically block the airway.

A suit in the U.S. District Court for the District of Nebraska–Lincoln stemmed from the trucking giant’s halting of work in 2013 for driver Robert Parker. Despite exhibiting a 35-plus BMI on his most recent Department of Transportation physical exam, Parker refused to participate in an in-lab sleep study to determine likelihood of OSA and any course of employer-provided treatment. With 5,000-plus drivers, Crete Carrier phased OSA testing throughout its terminal network, starting in 2010. Two years prior, the Federal Motor Carrier Safety Administration Medical Review Board linked the condition to daytime sleepiness, making drivers more accident prone, and recommended testing some drivers. Court documents indicate that Crete Carrier established that 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.

Parker alleged that the company’s policy violated the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. The Appellate Court panel examined the 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 transportation interests, which have struggled with how to address sleep apnea among commercial drivers, notes employment law attorney Nancy Delogu, a shareholder in District of Columbia office of Littler Mendelson P.C. “Outside of the transportation industry, it provides a clear roadmap on what any employer must do to ensure that its medical testing program meets ADA requirements,” she observes.

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