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Oct. 12 — A nationwide trucking company was within its rights to make a long-haul driver do an in-lab sleep study, fearing he had a weight-related disorder that could impair his driving, a federal appeals court ruled ( Parker v. Crete Carrier Corp. , 2016 BL 339384, 8th Cir., No. 16-1371, 10/12/16 ).
The ruling for Crete Carrier Corp. should help shape the standard for when over-the-road drivers can be tested for disability-related safety reasons.
In what may be a first-of-its-kind decision, the U.S. Court of Appeals for the Eighth Circuit said the private company’s sleep study requirement, based on body mass, didn’t violate the Americans with Disabilities Act. Crete set the requirement for a class of its Department of Transportation-certified over-the-road drivers who present reasonable safety concerns based on their weight-related risk of having obstructive sleep apnea and falling asleep at the wheel.
Richard Pianka of American Trucking Associations told Bloomberg BNA Oct. 12 that other courts have upheld medical-related safety inquiries by motor carriers under the ADA in similar situations, but he’s unaware of “any other cases dealing with sleep apnea and the ADA in the trucking context.” Pianka, a vice president and deputy general counsel with the ATA, submitted a brief in the case supporting Crete.
Crete didn’t act improperly when it took Robert Parker “out of service” because he refused to take the test, the Eighth Circuit found.
The company established that the requirement was job-related and consistent with business necessity—the controlling ADA standard—because it targeted a condition that can impair driver safety, the court said.
An in-lab sleep study is the “gold standard” for detecting sleep apnea, which causes daytime sleepiness, the court said. Parker’s body mass index was over 35, giving Crete “reasons to suspect” he was obese and had sleep apnea, it added.
“Obesity is the primary anatomic risk factor for obstructive sleep apnea,” Judge Duane Benton wrote. “A BMI of approximately 33 is the optimal cut-off to identify subjects likely to have obstructive sleep apnea,” he said.
Crete set the cut-off point for its testing at 35 and above. The company’s testing requirement was based in part on the recommendations of two DOT Federal Motor Carrier Safety Administration advisory committees, the court noted.
A lower court didn’t err in allowing Crete to introduce the expert testimony of Dr. Richard J. Schwab, Benton added.
Schwab is a specialist in the field of obesity and sleep apnea, Benton said. The lower court properly relied on Schwab’s view of the danger presented by drivers with the condition, the usefulness of considering obesity and BMI in determining which drivers to test, the validity of sleep studies as a testing method, and the availability of sleep apnea treatment, the judge found.
“Obstructive sleep apnea can be treated, decreasing the risk of motor vehicle accidents,” the court said.
Parker argued that he should have been excluded from the class of drivers Crete required to be tested because he didn’t have documented sleeping issues, he had an accident-free driving record, and he wasn’t considered by his own medical provider to need the testing. But none of those arguments was sufficient to “undermine Crete’s reasonable basis for concluding he poses a genuine safety risk,” the court said.
Dismissal of Parker’s ADA claim was proper because he didn’t show the company’s decision to suspend him from driving was really based on a perception that he is disabled rather than because he refused to submit to the sleep study, the court said.
Attorneys for the parties didn’t respond Oct. 12 to Bloomberg BNA’s request for comment.
Judges James B. Loken and Raymond W. Gruender joined the opinion.
Shiffermiller Law Office represented Parker. Sattler & Bogen represented Crete.
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Text of the opinion is available at https://www.bloomberglaw.com/public/desktop/document/Robert_J_Parker_Plaintiff__Appellant_v_Crete_Carrier_Corporation_?1476296439.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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