The United States Court of Appeals for the Sixth Circuit, which oversees Tennessee, Kentucky, Ohio, and Michigan, recently addressed a company’s requirement that an employee with sleep apnea wear a continuous positive airway pressure (CPAP) machine at night. The Sixth Circuit determined that the employer’s requirement is a valid accommodation and did not create an unsafe working condition.
The employer instituted a program for its commercial truck drivers to screen for sleep apnea risk factors during the employees’ required annual Department of Transportation (DOT) medical examination. The employee was a truck driver who was diagnosed with sleep apnea after undergoing his annual medical examination. The employer required the driver to wear a CPAP machine at night based on the employee’s diagnosis.
The employee tried to use the machine for several weeks but gave up after experiencing dry mouth, headaches, and nosebleeds. He sought a second sleep study through a doctor outside of the employer’s sleep study program. The second sleep study results indicated the employee did not have sleep apnea.
In response, the employer asked the driver to undergo another DOT medical exam to be recertified to drive. Although the driver secured the certification, the employer required him to undergo another sleep study. This study resulted in another sleep apnea diagnosis.
The employee driver refused to wear the CPAP machine and resigned. He thereafter sued the employer, alleging that his resignation was a constructive discharge (in other words, the conditions of his employment forced him to resign) and that the employer terminated him in violation of Ohio law and the Americans with Disabilities Act, claiming disability discrimination and retaliation.
The District Court ruled for the employer, prompting the driver to appeal to the Appellate Court.
Appellate Court’s Decision
The appellate court affirmed the district court’s opinion that the employer’s requirement that the employee wear the CPAP machine was not an unsafe working condition as alleged by the employee, but instead a disability accommodation meant to promote public safety on the highways and to ensure compliance with federal law.
The appellate court further noted that to show disability retaliation, a plaintiff must show that he was in a statutorily protected activity (here, having a disability), the employer took an adverse action against him (here, the termination), and there was a connection between the adverse action and the protected activity. The appellate court continued by stating that even if all of the aforementioned requirements are met, an employer may defeat a claim by showing that it had a legitimate, non-discriminatory reason. After this occurs, the ball goes back to the plaintiff to show that the reason was pretextual, or, in other words, just a reason created to hide unlawful behavior.
In the case at hand, the appellate court found that the employer had a legitimate business reason for the CPAP requirement, namely federal DOT rules that would have otherwise disqualified the employee driver from driving. Refusing to use a CPAP machine was not a protected activity that could be used to form the basis for retaliation. Because the employer offered a legitimate reason for requiring the employee driver to undergo a second DOT examination, the employee was unable to show that the employer’s reasoning for the requirements were pretextual. The appellate court found this to be the case even when the employee had his own doctor check to see if he had sleep apnea and that doctor determined that he did not. The appellate court determined that even though this occurred, the employer did not have to rely on this because the employer had the employee take two tests through its provider and both came back with a positive diagnosis.
Employers should generally be cautious when mandating that employees undergo specific medical procedures or use certain drugs or devices. Absent clear business necessity, such a demand may be viewed as contradictory to the ADA’s anti-discrimination requirements. When federal or state law mandates the employee’s medical status, however, such requirements can constitute a justifiable condition of employment. Here the court thus concluded that the company permissibly exercised its rights under the law. As this case demonstrates, however, the factors which determine the outcome can vary from case to case. Accordingly, a thorough analysis of the specific facts presented and the applicable controlling federal and/or state law in the jurisdiction involved should be done in determining and executing the plan of action.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at firstname.lastname@example.org. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.