NEWS IN BRIEF
RECENT SLEEP APNEA DECISION PROTECTS SCREENING POLICIES On October 12, the Eighth Circuit
Court of Appeals held that Crete Carrier Corporation did not discrimi- nate against one of its truck drivers by requiring the truck driver to undergo a sleep apnea test. For other carriers, this decision may mean that a driver’s pos- sible refusal to undergo apnea testing is likely not a strong enough defense for not having an apnea screening policy in place. In cases throughout the United
States, motor carriers have been criti- cized or even sued for failing to have sufficiently vigorous policies to detect or police sleep apnea among their driv- ers. Some of these claims are fueled by findings published by FMCSA advisory committees that have linked obstructive sleep apnea to daytime sleepiness and, hence, accidents. In at least one Arkansas case, a
motor carrier was able to avoid respon- sibility on the grounds that at the time of the accident, there was not yet any clearly established “best practice” for sleep apnea testing. But as the science has advanced
(and in the face of potential suits claiming driver fatigue), many motor carriers have attempted to promote safety by implementing various types of sleep apnea detection/monitoring pro- grams. While some safety experts have applauded such developments, the pro- grams have not made everyone happy. One source of push-back has come
from some drivers who have resisted undergoing mandatory testing. A recent
ARKANSAS TRUCKING REPORT | Issue 6 2016
case illustrates how motor carriers’ for- ward-thinking safety innovations may still get them sued. In Parker v. Crete Carrier
Corporation, a driver who had an elevated body mass index, refused to undergo an in-lab sleep study for sleep apnea. After Crete took him out of service, the driver produced a prescrip- tion from his personal medical care provider that stated that no such test was required. When Crete still refused to reinstate him, the driver sued, claim- ing that Crete’s program for assessing at-risk drivers violated the Americans with Disability Act and that by not rein- stating him, Crete had discriminated
against him on the basis of a perceived disability. In its ruling, the Eighth Circuit
Court of Appeals, which hears fed- eral appeals over cases originating in Arkansas, vindicated Crete’s program and its treatment of the driver. Attorney Greg Jones of Wright
Lindsey Jennings LLP commends the Court’s ruling. “To require a medical exam, a motor carrier must normally show that any medical exam is job related, that any asserted ‘business necessity’ is vital to the business, and that the exam is no more intrusive than necessary.” While Crete’s policy
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