Eighth Circuit Court Again Approves Safety-Based Medical Examination without Individualized Assessment
Does an employer violate the Americans with Disabilities Act (ADA) if it requires an entire class of employees to undergo a medical examination without assessing each class member’s individual characteristics? Filling a relative void in case law, the Eighth Circuit recently said no – at least where the employer has credible safety concerns and seeks to comply with federal regulations and guidelines.
Parker v. Crete Carrier Corporation involved an employer policy requiring all commercial truck drivers with a body mass index (BMI) of 35 or more to be tested for obstructive sleep apnea (OSA). OSA can cause loss of sleep and driver fatigue, which significantly increases the risk of accidents. Under Federal Motor Carrier Safety Administration (FMCSA) regulations, conditions like OSA can prevent a driver from being medically certified.
The best predictor of OSA is obesity. The FMCSA Medical Review Board (MRB) has long recommended sleep studies for obese drivers. In 2012, it recommended, in conjunction with the Motor Carrier Safety Advisory Committee, that drivers with a BMI of 35 or higher be tested for OSA. In 2016, it changed the recommendation to call for testing of drivers with a BMI of at least 40, or of at least 33 when additional risk factors exist. Crete implemented its policy in 2010 based on MRB recommendations.
Parker, a truck driver, had a BMI over 35. Crete sent him to conduct a sleep study, but he refused. When Crete removed him from service, he sued. Why? Parker argued Crete had failed to consider that (1) his own healthcare provider had produced a note stating that a sleep study was not medically necessary; (2) he had no documented history of sleep issues at work; and (3) he had received awards for his accident-free driving record. These personal factors, Parker claimed, removed any reasonable basis for conducting a medical examination.
In October 2016, a panel of the Eighth Circuit affirmed summary judgment for Crete. Noting that the ADA requires employee medical examinations to be job-related and consistent with business necessity, the court held that Crete’s policy met both standards. The exam was job-related, since it related to Parker’s safety as a driver, and Crete’s legitimate concerns about public safety demonstrated business necessity.
This left Parker’s objection that Crete failed to take account of his individual circumstances. The court rejected the notion that the ADA always requires review of an employee’s unique characteristics. To the contrary, employers may require medical testing of an entire class of employees, so long as the criteria used to define the class are consistent with business necessity. This was the case here, as BMI is the best indicator of OSA. While testing may reveal that some class members do not pose a safety risk, this did not render Crete’s class definition unreasonable. Crete did not have to wait for Parker to have an accident first.
On November 16, the Eighth Circuit denied reconsideration en banc, allowing the decision to stand. While good news for employers, the opinion does highlight the need for caution. Any policy based on class-wide characteristics must be evaluated with care. This is one area where it pays to consult with counsel!