Could Testing Obese Truckers Weigh Down Industry?

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By Patrick Dorrian

Oct. 20 — Trucking companies that aren’t yet testing their oversized drivers for sleep apnea may want to start doing so for safety and legal compliance purposes.

That is the upshot of a recent federal appeals court ruling and a potential Department of Transportation regulation, Lawrence S. Hall, who represents trucking and transportation companies, said. The appeals court’s ruling also reaches many FedEx, UPS, and public and private bus drivers, Hall told Bloomberg BNA.

But who pays for the testing and any necessary treatment when it is not covered by insurance? How can such testing be implemented without violating drivers’ rights against disability and weight discrimination? The issue presents tricky questions that the industry as a whole, as well as its individual members, may be forced to address.

Some tests for detecting sleep apnea are expensive, James Zervios of the Obesity Action Coalition told Bloomberg BNA.

Cost also is a factor in treating a driver for the condition after it has been diagnosed, Zervios added. He is the Tampa, Fla.-based advocacy group’s vice president of marketing and communications.

Sleep apnea can cause daytime sleepiness and thus affect driver and public safety. Driving with undiagnosed or untreated sleep apnea presents a safety hazard, “so it’s common sense to address the issue,” he said. On the other hand, it presents a difficult situation “when employees are made to bear the expense” of testing and treatment, Zervios said Oct. 18.

Smaller Carriers Could Feel ‘Incredible Blow Financially.’

But cost is a two-way street, at least for small and mid-size carriers, Hall said Oct. 17. He’s with Sandberg Phoenix & von Gontard P.C. in St. Louis.

The size of a company’s operation is central to how a carrier may be able to handle the issue. “There’s no one-size-fits-all approach” for addressing sleep apnea testing in the industry, Hall said.

That’s what makes the rule currently being considered by the DOT’s Federal Motor Carrier Safety Administration so important, he added.

If the FMCSA were to mandate sleep apnea testing industrywide and require carriers to pay for it, regardless of the size of their operations, “that could be an incredible blow financially” to smaller carriers, Hall said.

The agency issued an advance notice of proposed rulemaking, or request for public comments, on sleep apnea testing for commercial motor vehicle (CMV) carriers and drivers March 10. And on Oct. 24 the agency’s safety advisory committee and medical review board will hold a public meeting in Washington to address the issue.

“Companies need to be thinking about how they’re going to deal with” the testing of overweight drivers and whether, as a group, “they should be doing more now,” Hall said.

Eighth Circuit OK’d BMI-Based Apnea Screening

The permissibility of sleep apnea testing for drivers believed to be obese was the subject of the U.S. Court of Appeals for the Eighth Circuit’s Oct. 12 decision in Parker v. Crete Carrier Corp., 2016 BL 339384, 8th Cir., No. 16-1371, 10/12/16. In what appears to be a first-of-its-kind ruling, the court held that a North Dakota long-haul truck driver’s Americans with Disabilities Act rights weren’t violated when he was benched for refusing to be tested for the condition.

“Obesity is the primary anatomic risk factor for obstructive sleep apnea,” the Eighth Circuit noted. The court said that Crete Carrier Corp.’s body-mass-index-based testing fell under an exception from the ADA’s general prohibition against medical inquiries that may uncover a worker’s disability.

Crete’s BMI-based screening process was job-related and consistent with business necessity, the court ruled. That was so because sleep apnea can impair driver safety, BMI can be a reliable method of determining whether a person is obese, the DOT has made motor carriers responsible for the safety of drivers and the public, and sleep apnea “can be treated, decreasing the risk of motor vehicle accidents,” it said.

Motor carriers “need discretion to determine in a reasonable manner” when to test for sleep apnea and similar health-related safety concerns to meet their over-arching responsibility for driver and public safety, Richard Pianka of American Trucking Associations told Bloomberg BNA.

If the court had ruled the other way, it would have severely restricted the ability of motor carriers to establish criteria to require drivers to submit to safety-based medical screening, Pianka said Oct. 12. He’s a vice president and deputy general counsel with the ATA, which submitted a friend-of-the-court brief supporting Crete in the case.

The Eighth Circuit in Parker rejected the employee’s argument that he should have been excused from his employer’s sleep study, despite having a BMI exceeding the company’s 35-and-above threshold for inclusion, because he hadn’t been cited for sleep issues at work, he didn’t feel he had a problem, and his medical provider certified that the study wasn’t medically necessary, Pianka said.

“The potential for abuse” in accepting that approach “is pretty obvious,” Pianka said. “You can’t let drivers be their own judge and jury” in determining whether safety-related medical testing is necessary, he said.

Echoing that concern, Hall said there is “tremendous underreporting” of sleep apnea by drivers. They’re aware that a propensity for snoring is a sign that a person has the condition, so they might be inclined to “mask that symptom” when being examined by a doctor, he said.

“That’s where a bright-line rule like Crete’s comes in,” Hall said.

Ruling Has Wide Reach

The Eighth Circuit’s holding isn’t limited to long-haul drivers, but extends to any CMV driver who is subject to medical testing under the DOT’s commercial driver’s licensing (CDL) requirements, Hall told Bloomberg BNA Oct. 19.

That includes drivers of garbage trucks, school buses and delivery trucks if the vehicle’s weight exceeds the DOT’s threshold. “Any carrier that operates a business that uses drivers that need a CDL” is potentially affected, Hall said.

Moreover, he and Pianka both indicated that it’s likely other courts will follow the Eighth Circuit’s lead if asked to address carriers’ sleep apnea testing of overweight drivers.

Pianka told Bloomberg BNA he wasn’t aware of “any other cases dealing with sleep apnea and the ADA in the trucking context.” But other courts have found that safety-related medical inquiries by carriers in similar situations didn’t violate the ADA because they were shown to be reasonable and consistent with business necessity, he said, pointing to decisions by the Second Circuit and the U.S. District Court for the District of Western Pennsylvania.

“I think we will see copycats,” Hall said. “What you will see is that courts will be encouraging promotion of safety among trucking companies,” even if the FMCSA ultimately fails to pursue a regulation on the issue.

Will There Be an FMCSA Rule?

The FMCSA in August reviewed guidance on sleep apnea it had developed in 2012 to reflect more current information and medical practice, an agency spokesman told Bloomberg BNA in an Oct. 14 e-mail. That followed public listening sessions on its advance notice of proposed rulemaking—which also extends to safety-sensitive rail drivers—that the agency held in May in Chicago, Los Angeles and Washington.

President Barack Obama signed a law in October 2013 blocking the FMCSA’s sleep apnea guidance and requiring the agency to pursue the standard federal rulemaking process, Hall noted. The trucking industry had opposed the guidance because it wasn’t satisfied with the data the FMCSA’s medical review board relied on, he said.

“ATA opposed the use of guidance to address this issue because we believe a full rulemaking process, driven by evidence and science, and allowing all stakeholders to weigh in, is the proper approach here, and would offer uniformity and clarity that guidance alone can’t provide,” Pianka told Bloomberg BNA in an Oct. 20 e-mail.

According to the FMCSA spokesman, the agency hasn’t yet decided whether it will actually make a rule on the issue.

The medical review board will present the advisory committee with revised recommendations at the Oct. 24 meeting, and the advisory committee will then advise the agency on how a rule on obstructive sleep apnea “could impact drivers and their families and other practical considerations that are non-medical,” he said.

After the agency receives both of those reports “and has time to analyze them,” it will decide whether to move forward, the spokesman said.

What Is Prevalence of Sleep Apnea?

ATA is participating in the rulemaking process, Pianka said. In its comments to the advanced notice of proposed rulemaking, he said, the organization urged the FMCSA “to carefully consider the prevalence of severe obstructive sleep apnea in the driver workforce, treatment options, potential costs to drivers and the U.S. supply chain, and any corresponding safety benefits.”

The agency “must develop a full understanding of the actual crash risk that obstructive sleep apnea poses, and to that end should determine the percentage of commercial motor vehicle crashes caused by the sleep disorder—not merely those in which obstructive sleep apnea was present,” he said. ATA will continue to participate in the rulemaking process if the FMCSA elects to move forward with a rulemaking, and it will assist the agency in finding “an effective solution,” Pianka said.

Drivers also might welcome a rule on the issue, Zervios said.

“The message I’ve always received” from overweight truckers is that they want to do something about their size and weight, but that they have limited options to do so because they spend so much time on the road and generally have poor food choices, he said.

Who Pays, and at What Cost?

A greater concern for drivers is who pays for the testing and any necessary treatment, Zervios said.

“My question would be what options are employers giving drivers,” he said. The data behind exercise being an effective tool in weight loss “isn’t strong,” he said, and getting assistance from a dietitian or bariatric treatment is expensive.

Issues regarding how U.S. employers in general are helping obese workers fight their disease are already emerging. In most situations, Zervios said, he’s seen, “companies don’t offer enough support.” That’s a slippery slope, he said, because employers can drift into weight discrimination if they’re not careful.

Trucking is different, though, because “at the end of the day, it’s about driver and public safety,” he said. But if a company pulls an overweight driver from the road because it thinks he might have sleep apnea, it ought to at least pay for the testing, Zervios said.

That could be a problem for small and mid-size carriers, Hall said. While many large carriers’ employee medical insurance plans may cover sleep studies and apnea treatment, that generally isn’t the case with smaller carriers, he said. The cost on in-lab sleep studies like the type at issue in the Parker case alone can run about $3,000, Hall said.

There is also the financial impact of “driver down-time” when a driver is held out of service while undergoing testing and treatment. That too would have a greater impact on smaller carriers, Hall said.

“There’s already a nationwide driver shortage,” Hall said. Mandatory driver testing, if required by the FMCSA, “could spell big trouble” for smaller carriers in the loss of business due to driver down-time. “If you can’t service the customer, you get left behind.”

Nevertheless, it’s vital for all carriers to be aware of “what’s on the horizon” either through FMCSA rulemaking or if other courts that might embrace Parker’s holding, and to find a way to get ahead of what may be coming, Hall said.

“As a defense attorney, I’m also concerned about “the increased exposure of carriers to legal liability stemming from motor vehicle accidents if sleep apnea testing is required and documented,” he said.

Even if a truck driver isn’t at clear fault, evidence that he’s been diagnosed with or treated for sleep apnea could potentially be used to establish a company’s contributor negligence, Hall said.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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