When hiring or recruiting drivers, commercial truck driving companies must walk a tightrope between not violating the Department of Transportation’s health standards for long-haul truck drivers (DOT Regulations) and complying with the American with Disabilities Act (ADA) (42 U.S.C.S. § 12111-12117). In this article, we discuss the question, "does the DOT medical exam violate the ADA?" and offer insights as to how motor carriers can comply with both and avoid transportation and trucking liability.
DOT regulations require all drivers for interstate carriers to pass DOT-approved medical examinations and “otherwise possess certain minimum medical qualifications.” EEOC v. Celadon Trucking Servs., 2015 U.S. Dist. LEXIS 84639, *2 (citing 49 C.F.R. § 391.41 et seq.). At the same time, the ADA states an employer may not (1) request a job applicant undergo a medical examination, (2) inquire into whether a job applicant has a disability, or (3) inquire as to the nature or severity of a disability until after an offer of employment has been made. 42 U.S.C. § 12112(d)(2)(A)1.
In an attempt to comply with DOT Regulations, one truck driving company asked job applicants if they have ever been to the hospital or take medications. Celadon Trucking Servs., 2015 U.S. Dist. LEXIS 84639 at *2-3, *40. Thereafter, job applicants who passed background checks and possessed “basic qualifications” were invited to participate in a 3-4 day orientation program where “applicants underwent physical examinations designed to ensure that they met DOT-mandated driver health standards.” Id. at *4-6. Based on these facts, a class action claim of over 20 applicants was allowed by a federal district court to proceed against a motor carrier. Id. at 97.
These otherwise innocent inquiries and recruiting procedures could land your commercial truck driving company in hot water with the Equal Employment Opportunity Commission (EEOC) for violating the ADA. Here are several ways you can protect yourself:
- Know that Just Because It’s Called a “Conditional Offer” Does Not Make It So for Purposes of Conducting a Medical Examination
One mistake is thinking that extending “conditional offers” will automatically save you from liability under the ADA. Granted, this line of reasoning makes sense because the ADA permits employers to “require a medical examination after an offer of employment has been made to a job applicant.” 42 U.S.C. § 12112(d)(3). The ADA also allows an employer “to condition an offer of employment on examination.” 42 U.S.C. § 12112(d)(3). An employer may require a medical examination following an offer or conditional offer if “all entering employees are subjected to such an examination regardless of disability.” Id. Medical information gathered in a medical examination must be “treated as a confidential medical record” and can only be used or disclosed by the employer under certain circumstances2.
A conditional offer must be genuine. For instance, the court in Celadon Trucking Services determined that the facts did not necessarily support the existence of a conditional offer. Celadon Trucking Servs., 2015 U.S. Dist. LEXIS 84639, at *34. Despite having received “conditional offers,” applicants at an orientation were “not told at any point in time . . . during orientation that they have an offer of employment . . . .” Id.
Deposition testimony also revealed that Celadon had not intended to make conditional offers. Id. When extending conditional offers, it is crucial that all individuals involved in the motor carrier’s hiring decisions and management understand (1) when conditional offers have been made, and (2) an individual with a conditional offer is not a mere “job applicant,” and has received an offer of employment.
- Make Sure A “Real Offer” Has Been Made Before Conducting the DOT-Mandated Medical Examination
According to the EEOC, an employer may not conduct a medical examination of a job applicant until an offer has been made. Id. at *48 (citing EEOC Informal Discussion Letter, “ADA: Post-Offer, Pre-Employment Medical Exams” (Feb. 26, 2009)). Prior to requiring a prospective employee to undergo a medical examination, the employer must review “all non-medical information” and extend a “real offer.” Id. If the employer wants to conduct a medical examination of a prospective employee, then it must do so for “all entering employees in the same job category.” Id.
These requirements seem unfair for motor carriers who must also comply with DOT regulations when hiring drivers. However, courts have made no exception under the ADA for motor carriers and “have found the ban on pre-hire examinations to be applicable even when the examinations were required pursuant to DOT regulations.” Id. (citing Toole v. Metal Servs., LLC, 17 F. Supp. 3d 1161 (S.D. Ala. 2014); Laurent v. G & G Bus Serv., Inc., 2013 U.S. Dist. LEXIS 137821 (S.D.N.Y. Sept. 25, 2013); Denton v. Chi. Transit Auth., 2010 U.S. Dist. LEXIS 46455 (N.D. Ill. May 6, 2010), aff’d 400 Fed. App’x 90 (7th Cir. 2010)). This is because the ADA “does not ‘gut’ DOT regulations; it merely channels them into the post-offer, pre-employment phase of the hiring process.” Id. at *47.
At the end of the day, motor carriers must be aware that an offer has to be made following all “non-medical information” being evaluated. In other words, a medical examination of a prospective employee should be treated “as a separate, second step of the examination process, after an individual has met all other job prerequisites.” Id.(Quoting EEOC Technical Assistance Manual, § 6.4 (Jan. 1992).
- Avoid Making Broad, Open-Ended Medical Inquiries to Job Applicants
Never ever ask a job applicant broad, open-ended questions like “What impairment do you have?,” Id. at *19 (Citation Omitted), or “What prescription drugs are you taking?” Definitely do not ask a job applicant “Have you ever been injured, hospitalized, had surgery, been treated by a doctor on an outpatient basis, currently being treated by a doctor, or are you currently on any medications?” Id. at 40. The Celadon Court found that this particular question violated the ADA. Id.
Even worse, the employer in Celadon required job applicants to “list all medical issues and all medications.” Id at 42. Inquiries like these “ [run] afoul of the [ADA]’s prohibition on employers’ using pre-hire inquiries as a broad-based device to screen for potential disabilities. Id. at 40.
The Celadon court determined that broad inquiries were not necessary to comply with DOT regulations. Id. at 41. However, the Celadon court did acknowledge that the employer’s other, more specific medical inquiries to job applicants were acceptable under the ADA. Id. at 39. Once a job offer has been made or an applicant becomes employed, an employer cannot conduct medical examinations or inquiries regarding the presence, nature or severity of a disability “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(4)(A). An employer may “make inquiries into the ability of an employee to perform job-related functions.” 42 U.S.C. § 12112(4)(B)3.
- Understand That Some Inquiries are OK Under the ADA
The ADA states employers “may make pre-employment inquiries into the ability of an applicant to perform job-related functions.” 42 U.S.C. § 12112(d)(2)(B). In this regard, the Celadon court considered a job applicant’s ability to comply with DOT regulations a “job-related function” that an employer may inquire into under the ADA. Celadon Trucking Servs., 2015 U.S. Dist. LEXIS at *43.
Motor carriers should be careful not to cross the line into questioning beyond what is “not directly relevant to an applicant’s ability to perform the job,” Id. at *40, or otherwise considered “job-related.” Therefore, questions must be specific to what is required by the DOT regulations. See Id.
DOT regulations state a commercial truck driver must not have various medical issues, which can include:
- Problems with use of limb(s)
- Hearing problems
- Visual problems
- Diabetes mellitus
- Heart Problems
- Respiratory Problems
- High blood pressure
- Severe psychiatric disorders
- Drug abuse
Id. at *38-39 (citing 49 C.F.R. Sec. 391.41(b)). The DOT Regulations on the medical standards for long-haul truck drivers can be found here.
The Celadon Court found some questions were “job-related” because they were specific inquiries supported by language in DOT regulations. Id. at *39-40. These questions included: (1) “Have you ever been diagnosed with sleep apnea?” Id. at *2; and (2) “Have you ever had a heart attack, heart bypass surgery, or have had angioplasty (balloon) or stent placed?” Id. Therefore, motor carriers should lean towards asking specific questions supported by language in DOT regulations, as opposed to broad questions.
When complying with DOT regulations, motor carriers must ensure job applicant health inquiries are ADA-compliant. Furthermore, motor carriers should never perform medical examinations on job applicants prior to an offer of employment. See Id. at *45. For any additional questions on how to comply with DOT regulations and/or the ADA, feel free to contact Kristin Tauras, employment law attorney, James Cook or Alexander Sweis commercial transportation attorneys .
- (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;