Thursday, June 19, 2014
Driver Medical Disqualifications Roadmap
Crete Carrier Corporation employed
as a commercial truck driver from November 2003 until April 2010 at its Sakari Jarvela based terminal.
At some point in that time, Jarvela developed a problem with alcohol abuse. In
March 2010, he sought treatment after his personal physician who diagnosed him
as suffering from alcoholism and referred him to an intensive outpatient
treatment program. Jarvela notified Atlanta Crete of
his need for Family and Medical Leave Act (FMLA) leave and provided a statement
from his physician as part of the FMLA approval process. Crete
approved the leave from March 18, 2010, until June 6, 2010. Jarvela completed
his alcoholism treatment program early on April 20, 2010, and immediately
sought to return to work—a month and a
half after his original diagnosis of alcoholism.
On June 18, 2014, the 11th Circuit Court of Appeals affirmed summary judgment for
Crete. The Court looked first at
Crete’s written job description for Jarvela’s position which stated, “that an
essential duty is that the employee qualifies as a commercial driver pursuant
to both DOT regulations and Crete company
policies.” The Court found the crucial issue to be whether Jarvela qualified
under DOT regulations and Crete company
policy. The DOT regulations specify that a person is not qualified to drive a
commercial motor vehicle if he has a “current clinical diagnosis of
alcoholism.” 49 C.F.R. § 391.41(b)(4). The 11th Circuit interpreted
a “current clinical diagnosis of alcoholism” in this case to mean that an
individual suffers from alcohol dependency.
The Court noted that the DOT regulations make clear that an employer makes the final determination of who is a qualified individual to drive a commercial truck. See 49 CFR § 391.11(a). Jarvela contended that only a DOT medical examiner (who had issued him a six-month medical certification) c o uld determine whether he had a current clinical diagnosis of alcoholism. The Court sided with
Crete that an employer must make the final determination
of whether an employee suffers from a current clinical diagnosis of alcoholism
because DOT regulations unambiguously place the burden on an employer to ensure
that an employee meets all qualification standards. 49 CFR § 391.11(a). The regulations provide that a motor carrier “shall
not require or permit a person to
drive a commercial motor vehicle” unless the person is qualified to drive one.
Aperson is only qualified to drive a commercial motor vehicle if he has no
“current clinical diagnosis of alcoholism.” See
49 CFR § 391.41(b)(13). The Court held that since the regulations “place
the onus on the employer to make sure each employee is qualified to drive a
commercial vehicle, the employer must determine whether someone suffers from a
current clinical diagnosis of alcoholism.” Thus Jarvela was not able to meet an
essential job function as set forth in his written job description.
Jarvela’s FMLA claim was also found to be without merit because “an employer can deny reinstatement following FMLA leave if it can demonstrate that it would have discharged the employee even if he had not been on FMLA leave.” The Court found that “regardless of whether
had taken FMLA leave, there [was] ample, unrebutted evidence in the record to
indicate that Mr. Jarvela Crete would have discharged him
upon learning of his diagnosis of alcohol dependence.” The case is Sakari Jarvela v. Crete Carrier Corporation.
Common Sense Counsel: this case gives a DOT FMCSA regulated employer a roadmap to dealing with alcoholism, drug dependency and issues of medical disqualification. Following these five steps will help keep unsafe drivers off the road and avoid a collision with the EEOC. 1) Update Driver Job Descriptions to include: “an essential duty is that the employee qualifies as a commercial driver pursuant to both DOT regulations and company policies”; 2) Do Not Ignore Potential Medical Disqualification Information regardless of its source: worker's compensation doctors reports, FMLA paperwork, MRO safety concern letters, fitness for duty evaluations, etc.; 3) Know The Regulations especially 49 CFR parts 40, 382 and 391 which all contain very helpful language on Actual Knowledge (383.107); MRO safety concern letters contain "medically unqualified" language (40.135) and Disqualification of Drivers (391.11, 391.15 & 391.41) contains extensive list of grounds; 4) Trusted Medical Examiner – do not play a doctor but find a really good one. Select a doctor who you can pick up the phone with explain the medical information you have in front of you and ask for guidance. This doctor should be an MRO and be certified to conduct DOT medical examinations and willing to consult with you on examination conducted by other doctors. 5) Learn the
Dance. At some point you will need to have an interactive conversation with
the driver and build your paper trail to make an effective and defensible termination
decision. Using a trusted dance instructor can help make you look like a pro. ADA