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Friday, October 14, 2016

Trucking Company Wins Sleep Apnea Challenge

By Thomas Eden
In 2010, Crete Carriers began a sleep apnea program based primarily on two Federal Motor Carrier Safety Administration (FMCSA) advisory committees—the Medical Review Board (MRB) and Motor Carrier Safety Advisory Committee (MCSAC) recommendations. Under the regulations, drivers must get medical examinations from FMCSA-certified examiners every two years. Drivers cannot operate commercial motor vehicles unless an examiner certifies them as physically qualified to do so. 

During this examination—a “DOT physical”—the examiner measures height and weight; takes a health history; tests vision, hearing, blood pressure, and urine; and physically examines numerous body systems. To receive certification, a driver must not have impairments that interfere with driving.

The Crete Carriers’ program required drivers at risk for obstructive sleep apnea to undergo in-lab sleep studies. Drivers found to have obstructive sleep apnea were placed on a treatment regimen. Crete implemented the program in stages, first at larger terminals and then at smaller facilities.

Crete added Robert Parker’s facility in Nebraska in July 2013. Crete hired Parker as an over-the-road truck driver in 2006. Crete told Parker that, due to his size, it was scheduling him for an in-lab sleep study. Crete required an in-lab sleep study if either (1) the driver’s BMI was 35 or above, or (2) the driver’s physician recommended a sleep study. At Parker’s most recent DOT physical, his BMI was over 35.

On July 11, 2013, Parker visited a certified physician assistant not affiliated with Crete, who wrote a statement, “I do not feel it is medically necessary for Robert to have a sleep study.” The next week, Parker refused Crete’s required sleep study. Crete took Parker out of service. The next day, Parker gave the physician assistant prescription statement to Crete. Crete did not reinstate Parker.

Parker then sued Crete in Federal Court in Nebraska, alleging it required a medical examination violating the Americans with Disabilities Act, and discriminated against him because it regarded him as having a disability. Crete moved for summary judgment based on a sleep apnea medical expert affidavit. In granting the motion, the district court relied on the expert’s discussion of the danger posed by drivers with obstructive sleep apnea.

Common Sense Counsel: This week the 8th Circuit Court of Appeals found in favor of Crete holding that “when an employer requires a class of employees to submit to a medical exam, it also “must show that it has reasons consistent with business necessity for defining the class in the way that it has.” An employer satisfies this burden by showing a “reasonable basis for concluding” that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively. All that is required is that “the employer has defined the class of employees reasonably.” As the saying goes, having a qualified medical professional render a correctly worded expert medical opinion, under the ADA, before you take adverse employment action - “Priceless!”

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at with link to full case.