The most famous reindeer of all may be Rudolph, but St. Nick has the lock on being the most famous driver in the entire transportation industry. And with such an incredible safety record and history of on-time deliveries, would we ever think of Santa as being disabled under the Americans with Disabilities Act Amendments Act​ (ADAAA)? It depends on who you ask. If you ask the EEOC, the answer would be of course. However, most federal courts that have considered the issue have concluded that obesity is not a disability under the ADAAA unless it is caused by an underlying physiological disorder. Thankfully, these courts have refused to accept the EEOC’s interpretive guidance which suggests that physical characteristics such as eye-color, height, and weight that are outside the “normal” range can be considered physical impairments regardless of whether they are caused by a physiological disorder. To accept that notion would indeed mean that Santa is disabled.

While considering whether Santa is disabled is big holiday fun, the transportation industry faces serious challenges in trying to decide how best to handle the growing problem of DOT covered drivers who suffer from obstructive sleep apnea (OSA). While obesity that is not the result of an underlying physiological cause is arguably not a disability, in August of this year, the Federal Motor Carrier Safety Administration’s advisory Medical Review Board recommended that any driver with a BMI of 40 alone, or 33 – 39 plus three other risk factors, be required to undergo a diagnostic sleep evaluation to determine if the driver suffers from OSA.  According to the FMCSA, drivers who have OSA may not be able to safely operate a commercial motor vehicle. The FMCSA explains it this way.

“Because sleep apnea affects your sleep, it also affects your daytime alertness and performance. Untreated sleep apnea can make it difficult for you to stay awake, focus your eyes, and react quickly while driving. In general, studies show that people with untreated sleep apnea have an increased risk of being involved in a fatigue-related motor vehicle crash.”

The FMCSA is still considering the comments it received in connection with its advance notice of public rule making on screening truck drivers for OSA. In the meantime, employers in the transportation industry are left to fend for themselves when it comes to managing the risks associated with drivers who have OSA. On the one hand, carriers have an obligation to ensure that their drivers possess the necessary physical qualifications to safely operate their trucks on the interstate; on the other hand, they have a competing statutory obligation to ensure that they are not unlawfully discriminating against drivers with disabilities under the ADAAA. Crete Carrier Corporation took the proactive step of developing a sleep apnea program, drew an ADAAA lawsuit, and successfully beat it. However, many transportation companies have not designed such a program and handle these issues on an individualized, case by case basis. In that situation, the legal issues are similar but certainly not the same.

If you are a transportation company trying to understand the legal issues associated with handling DOT drivers who suffer from OSA or perhaps you are interested in building a sleep apnea program for your drivers, contact the JL attorney with whom you regularly work. Also be on the lookout for our program in early 2017, “Asleep At The Wheel,” a webinar designed to help carriers identify and manage the risks associated with DOT drivers who suffer from OSA.