A couple weeks back the Eighth Circuit took a look into the world of truck drivers, and all the health concerns and employment protocols that entails. But how long will this ruling stay relevant?
The truth is almost every section of the workforce is facing some sort of disruption, and truck driving is no exception. As drivers, their bosses, and regulators face the future, it’s possible that disruption will hit—one way or another—before the dust settles too much.
The ruling in question comes as Parker v. Crete Carrier Corp., et al., where Crete Carrier Corporation started requiring its drivers with BMIs of 35 or greater to submit to medical examinations about whether they had obstructive sleep apnea. It’s part of a growing wellness movement, but with truckers it carries its own baggage: The National Institute for Occupational Safety and Health (NIOSH) found that long-haul drivers in the U.S. were more likely to smoke, and suffer from other risk factors for chronic disease.
They were also twice as likely to be obese compared to the average working adult. And in March the Department of Transportation released“Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” The agency requires drivers to get tested every two years to make sure they’re still healthy enough to do the long-haul, and two advisory committees have advised it amend its standards to include more about sleep apnea. Not everyone agrees, but the ones that do say it would promote public safety as well as drivers’ well-being. Crete’s answer to this was to make sure “obese” drivers (anything over 30 is obese on the BMI scale) were tested. If they were found to have obstructive sleep apnea, they were placed in a treatment regimen.
Only, when driver Robert J. Parker refused to submit to a test, Crete stopped giving him work. Parker sued the company on the grounds that it was an ADA violation, by requiring the examination and discriminating on the basis of a perceived disability. That case wound its way all the way to the Eighth Circuit, after Crete’s victory at the District Court.
And once again, Crete squeaked out a victory. AsBrent I. Clark, Kay R. Bonza, and Craig B. Simonsen write on the Employment Law Lookout:
When analyzing Parker’s claim against Crete, the court noted that an employer requiring a particular class of employees to get a medical exam must show that the exam is job-related and that it is a “business necessity.” To constitute a “business necessity,” there must be a reasonable basis for concluding that the class of drivers required to be examined poses a genuine safety risk. Moreover, the employer’s exam requirement must enable the employer to reduce that risk.The Eighth Circuit concluded that Crete’s suspension of Parker was not a violation of the ADA because Parker refused to submit to a lawful medical examination. Crete factually established that “untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2- to 4.9-fold.” Moreover, “a sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis.” Because obesity and BMIs above 33 are closely linked to obstructive sleep apnea and seeking treatment for sleep apnea decreases the risk of motor vehicle accidents, the Court found that the sleep study requirement for overweight drivers was a business necessity.
But will that stay for long? For the past few years there’s been more than a few rumbles about whether obesity discrimination should be allowed in workplaces. Under the standards set down by the CDC, one third of adults in the U.S. qualified as “obese” in 2011. But so far the ADA has only concretely covered obesity caused by psychological disorders as disabilities. In fact the Eighth Circuit is the one who, earlier this year, ruled that obesity is not a “disability” within the meaning of the ADA.
Which is not to say that fat discrimination is not happening across the board: The classic imagery is getting bullied at school, but fat people can come from employers too. Studies have found that a resume accompanied with a picture or video of an “overweight” applicant causes them to be judged more negatively and less likely to be hired. Stigmas like this can make it difficult to unpack the intersections of weight with health concerns like sleep apnea.
And that’s all before robots get involved. This decision came just a week before Uber announced that they, with An, had shipped 50,000 cans of Budweiser beer on a 100 mile journey using a self-driving big rig. The company—already exploring driverless cars as an alternative to their own employment woes—could change the industry of long-haul driving much sooner than previously expected. Like anything else in the autonomous vehicle space there’s still a lot to be worked out (possibly even more, with the size and scope of big rigs and their pathways). But this initial testing went off without a hitch. And with Otto (the Uber subsidiary responsible for the truck) focused on designing hardware kits for existing truck models as opposed to reinventing the wheel, this process could, in theory, be replicated fairly soon.
Ninety-four percent of human fatalities in car accidents are caused by human error. Otto’s spokespeople say they could cut down on that, as well as provide lower insurance premiums and higher fuel-efficiency.
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