Share
October 24, 2016 3:00 AM, EDT

Appeals Court Rejects Obese Driver’s Claim That He Needn’t Submit to Sleep Apnea Test

John Sommers II for TT

This story appears in the Oct. 24 print edition of Transport Topics.

An appeals court has rejected claims by an obese truck driver that he should not have been required by his employer to submit to a sleep study to determine if he had obstructive sleep apnea.

The 8th U.S. Circuit Court of Appeals ruled that Lincoln, Nebraska- based Crete Carrier Corp. did not violate the rights of truck driver Robert Parker, who was referred to a sleep study after a medical exam because he had a body mass index of “35 or greater.”

The appeals court opinion supported a lower federal court ruling dismissing the case.

A body mass index, or BMI, is a measure of body fat based on a person’s height and weight.

Crete had a policy that any driver with a BMI of 35 or above be regarded as a risk for sleep apnea and be required to submit to a sleep study.

Crete dismissed Parker, who had worked for the company since 2006, after he refused to take the sleep study in July 2013, according to court documents that also said the company refused to give him any more work about a week later.

Parker, who had been a top trainer at Crete and in 2012 was presented with the carrier’s five-year accident-free driving award, alleged that requiring the study and withholding work was a violation of the Americans with Disabilities Act.

The carrier said a sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis and that an in- lab sleep study is the “gold standard for diagnosing obstructive sleep apnea.”

The appellate court agreed, ruling Oct. 12 that Crete had a “reasonable basis” for concluding that its drivers pose a safety risk due to a correlation between high BMI and obstructive sleep apnea, and that a sleep study requirement allows Crete to decrease the risk by ensuring that drivers with sleep apnea get treatment.

“The undisputed evidence shows that Crete suspended Parker for refusing to submit to a lawful medical examination,” the court said in its opinion. “That does not violate the ADA. Since Crete’s stated reason for suspending him was not pretext, Parker’s claim fails.”

In court documents, Parker said that, in June 2014, he was administered a Commercial Driver Fitness Determination examination by his physician, who said Parker “met the standards and qualified for a 2-year certificate,” and the physician also noted “no concerns with health history. No limitations. No medication.”

But the appellate court said that Crete “had reasons to suspect that Parker had sleep apnea.”

Medical advisers to the Federal Motor Carrier Safety Administration until recently have recommended that drivers with a BMI above 35 receive only a conditional Department of Transportation certification and that they undergo an additional examination for obstructive apnea. However, the agency’s Medical Review Board in August revised the recommendation to a BMI of 40 or above as a risk factor for obstructive sleep apnea that merited a sleep study.

Sleep apnea is a condition in which a person stops breathing briefly during sleep, causing poor sleep quality or other symptoms. FMCSA has said that obstructive sleep apnea causes daytime sleepiness, making drivers more likely to have accidents.

However, regulators have said that obstructive sleep apnea can be treated, decreasing the risk of motor vehicle accidents.

Sleep study referrals have been a controversial issue for truck drivers, who say they too often result in huge medical bills and require time off from work.

Attorneys for Parker and Crete did not return phone calls seeking comment, nor did FMCSA comment on the case.

“We think it’s a significant victory for the industry,” said Richard Pianka, deputy general counsel for American Trucking Associations. “It affirmed the idea that carriers can apply reasonable criteria to screen employees for safety-related medical conditions without running afoul of the American Disabilities Act limitations on medical inquiries.”

ATA filed a “friend of the court” brief supporting Crete.

“We think that carriers need to be able to exercise their discretion in a reasonable way,” Pianka said. “They have an obligation to ensure the safety of their fleets, and if the plaintiff in this case was correct, it really would have handcuffed carriers in their ability to do that.”