Robert J. Parker v. Crete Carrier Corp.: The 8th Circuit Court of Appeals has held that a motor carrier does not violate the Americans with Disabilities Act by establishing of class for commercial drivers to undergo medical examination, inclusive of a sleep study, for determining whether a driver suffers from obstructive sleep apnea.
Crete Carrier Corporation requires its drivers who have body mass indexes (BMIs) of 35 or greater to undergo medical examinations to determine whether the drivers suffer from obstructive sleep apnea. Pursuant to that policy, Crete instructed its driver Robert Parker to get such a medical examination, and Parker refused. Crete then stopped assigning routes to Parker. Parker sued Crete, alleging that it had violated the Americans with Disabilities Act by requiring him to undergo examination and discriminating against him on the basis of a perceived disability. The district court granted summary judgment in Crete’s favor. Parker appealed to the Eighth Circuit Court of Appeals. Robert J. Parker v. Crete Carrier Corporation [Ms. 16-1371], — F.3d — (8th Cir. Oct. 12, 2016).
Both Parker (as a commercial driver) and Crete Carrier Corporation (as an interstate motor carrier) are subject to the Federal Motor Carrier Safety Regulations (“FMCSR”). These regulations require commercial drivers to get a medical examination (known as a “DOT physical”) every two years in order to be eligible to continue to drive.[1] In order to be certified to drive, a driver must not have impairments that interfere with his driving ability.[2] The Motor Carrier Safety Advisory Committee (“MCSAC”) and Medical Review Board (“MRB”) have both recommended that the Federal Motor Carrier Safety Administration (“FMCSA”) amend its certification standards to specifically address obstructive sleep apnea.[3]
In 2010, Crete adopted its sleep apnea program based on the recommendations made by MRB and MCSAC, requiring at-risk drivers to undergo in-lab sleep studies for obstructive sleep apnea. Drivers who were found to suffer from obstructive sleep apnea began receiving treatment. In July 2013, Crete informed Parker that due to his size he would be required to undergo a sleep study. Shortly thereafter, Parker visited a physician, who was certified by the FMCSA but not affiliated with Crete, who indicated it was not medically necessary for Parker to undergo a sleep study. When Parker continued to refuse to submit to testing, Crete placed Parker out of service and did not reinstate him. Parked then sued Crete. Ultimately, the district court granted Crete’s motion for summary judgment, and Parker appealed.
In considering whether Crete’s motion for summary judgment was properly granted, the Eighth Circuit Court of Appeals considered the rights afforded Parker under the Americans with Disabilities Act (“ADA”), and whether Crete suspended Parker in violation of the ADA. The ADA prohibits employers from requiring a medical examination of an employee unless the exam is shown to be job-related and consistent with business necessity.[4] The employer has the burden of showing that an examination it has required an employee to undergo is job-related, vital to the business, and no more intrusive than necessary.[5] Parker alleged that Crete failed to consider his “individual characteristics.” But the statute does not require an employer to consider the employee’s unique characteristics before requiring a medical exam, and in fact permits employers to require a class of employees to submit to medical exams.[6]
In order to require a class of employees to submit to medical examination, the employer must show that it has reasons consistent with business necessity for defining the class and has a reasonable basis for concluding that the class poses a genuine safety risk that would be effectively decreased by the medical exam.[7] For the purposes of sleep apnea testing, Crete defined the class of employees as drivers with BMIs of 35 or greater. Any driver that fell within the class was required to submit to a sleep study. Crete was able to establish that the sleep study could reasonably reduce risk as follows:
“Untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2- to 4.9-fold. A sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis. An in-lab sleep study is the gold standard for diagnosing obstructive sleep apnea. Obesity is the primary anatomic risk factor for obstructive sleep apnea. A BMI of approximately 33 is the optimal cut-off to identify subjects likely to have obstructive sleep apnea. Screening with a BMI above 33 has a sensitivity of 76.9% (meaning 76.9% of people with obstructive sleep apnea have a BMI above 33) and a specificity of 70.5% (meaning 70.5% of people who do not have the condition do not have a BMI above 33). Obstructive sleep apnea can be treated, decreasing the risk of motor vehicle accidents.”
Parker was unable to dispute the facts presented by Crete. The Eighth Circuit found that Crete’s classification was reasonable, and its inclusion of Parker within the class was likewise reasonable.
Parker further alleged that Crete violated the ADA by discriminating against him because he had an impairment.[8] In order to prevail on this claim, Parker must show that (1) Crete regarded him as having a disability, (2) he had the qualification to perform the essential functions of his job without reasonable accommodation, and (3) Crete took an adverse action due to Parker’s perceived disability.[9] Crete was able to rebut these allegations by showing that it suspended Parker due to his failure to undergo a sleep study, which the Eighth Circuit found to be a legitimate, non-discriminatory requirement.
The Eighth Circuit found that the sleep study requirement was lawful and Crete’s suspension of Parker for refusal to submit to the medical examination was lawful and did not violate the Americans with Disabilities Act. Therefore, the district court properly granted summary judgment in favor of Crete.
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Footnotes
[1] 49 C.F.R. §§ 391.43(a), 391.45(b)(1).
[2] 49 C.F.R. § 391.41(b).
[3] “February 6, 2012 MCSAC and MRB Task 11-05- Final Report on Obstructive Sleep Apnea (OSA),” U.S. Dept. of Transportation, Federal Motor Carrier Safety Administration; “January 28, 2008 Medical Review Board Meeting Summary,” U.S. Dept. of Transportation, Federal Motor Carrier Safety Administration.
[4] See 42 U.S.C. § 12112(d)(4)(A).
[5] See Thomas v. Corwin, 483 F.3d 516 (8th Cir. 2007).
[6] See 42 U.S.C. § 12112(d)(3); see also Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 98 (2d Cir. 2003)
[7] Conroy, 333 F.3d at 101.
[8] See 42 U.S.C. §§ 12102(1)(C), 12112(a).
[9] See Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th Cir. 2010).
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