Here is a link to the Bloomberg BNA story. Could Testing Obese Truckers Weigh Down Industry?
Below is Hall’s blog on the potential impact from the District Court.
FMCSA and Court Target Specific Policies for Drivers with Sleep Apnea
On March 10, 2016, the Federal Motor Carrier Safety Administration (FMCSA) requested comments regarding proposed rulemaking related to obstructive sleep apnea (OSA) and its effects on transportation safety. OSA causes restless sleep, which can lead to deficits in attention, concentration, situational awareness, and memory. While all truck drivers are screened for respiratory issues, FMCSA’s notice could lead to OSA-specific screening requirements. FMCSA’s medical review board recommended using a body mass index (BMI) of 33 as a screening indicator for OSA, which is notable in light of the Nebraska District Court’s recent decision in Parker v. Crete Carrier Corporation.
In that case, Crete Carrier Corporation (CCC) fired Parker, a truck driver, for refusing to comply with a company policy requiring drivers with BMIs of at least 33 to undergo a sleep study. Parker sued CCC, alleging CCC’s policy violated the ADA, which generally prohibits employers from mandating medical examinations unless the examination is (1) job-related and (2) consistent with business necessity. In response, CCC argued that the policy was job-related because persons with respiratory dysfunctions like OSA are not qualified to drive commercial motor vehicles under Department of Transportation (DOT) regulations. Also, CCC claimed the policy was consistent with business necessity because of the potential danger posed by truck drivers falling asleep at the wheel.
The court agreed with CCC. Specifically, the court recognized that CCC’s policy was job-related because it helped ensure that drivers were physically qualified under DOT regulations. Also, the policy was consistent with business necessity because of the dangers posed by drowsy drivers. The court connected the dots between OSA and CCC’s policy:
“OSA can cause driver fatigue; the biggest predictive factor of OSA is obesity; obesity can be objectively measured by calculating one’s BMI; and polysomnography (a sleep study) is the “gold standard” for diagnosing OSA.”
In light of FMCSA’s proposed rulemaking and the court’s decision in Parker, trucking companies should consider developing policies addressing OSA and contribute to the FMCSA’s discussion by submitting comments by July 8, 2016.