EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Truck Drivers with Diabetes / Medical Screening Rules / Safety
June 6, 2006
Ms. Annette M. Sandberg
Federal Motor Carrier Safety Administration
Department of Transportation
400 7th Street, S.W.
Washington, DC 20590-0001
Re: Advance Notice of Proposed Rulemaking: Qualifications of Drivers; Diabetes Standard
Dear Administrator Sandberg:
On behalf of the Equal Employment Opportunity Commission, we are submitting the following comment in response to the referenced ANPRM, published in the March 17, 2006 Federal Register (71 Fed. Reg. 13,801). In the ANPRM, the Federal Motor Carrier Safety Administration (FMCSA) asked whether and, if so, how it should amend its medical qualification standards to allow the operation of commercial motor vehicles (CMV) by drivers with insulin-treated diabetes mellitus (ITDM).
The Commission, as the agency responsible for enforcement of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), has long been interested in the rules and limitations that FMCSA has applied to ITDM CMV drivers. As we have expressed to your agency in the past, we are interested in increasing the employment opportunities in transportation for individuals with disabilities, including individuals who have ITDM. This goal, moreover, is consistent with the goals of the ADA: to reduce, if not eliminate, barriers to employment for persons with disabilities and to foster increased use of individualized assessments of the qualifications of individuals applying for work.
The Commission also has a strong interest in ensuring that employers do not discriminate against persons with ITDM based on generalized assumptions relating to their medical status. In 2003, the Commission issued guidance entitled “Questions and Answers about Diabetes in the Workplace and the Americans with Disabilities Act” (the “Q&A”).1 The Q&A noted that in 2003, approximately 17 million Americans 20 and older have diabetes, and that the number of new cases has been growing by one million each year. Diabetes affects persons belonging to nearly every race and ethnicity. The Q&A also noted that although individuals with diabetes “successfully perform all types of jobs from heading major corporations to protecting public safety . . . many employers still automatically exclude them from certain positions based on myths, fears, or stereotypes.” Similarly, statutory and administrative rules also have denied or severely restricted the access of qualified individuals from certain occupations. In particular, the Q&A noted that some employers, even those not subject to FMCSA rules, “wrongly assume that anyone with diabetes will be unable to perform a particular job (e.g., one that requires driving) or will need to use a lot of sick leave.”
History of the Issue/EEOC’s Input
The FMCSA’s ANPRM sets forth the history of the agency’s regulation of ITDM CMV drivers. Of particular relevance, and in response to a 1998 directive from Congress, FMCSA assembled a medical panel to examine whether it could expand the pool of ITDM CMV drivers while ensuring public safety. In July 2000, the panel issued a “Medical Report to Congress,” concluding that the agency could establish a protocol that would enable ITDM drivers to obtain CMV certification. The agency then issued a Notice of Final Disposition, 68 Fed. Reg. 52,441 (Sept. 3, 2003), which established a set of procedures and protocols, including a three-year CMV driving experience prerequisite that few ITDM drivers were able to meet.2
Subsequently, this current Congress, in section 4129 of the SAFETEA-LU, Pub. L. No 109-59, required the agency to change the 2003 process by eliminating the three-year experience prerequisite and revising its medical screening rules to make them consistent with the July 2000 findings of the FMCSA’s expert medical panel. The section further states, in language that has resonance to the EEOC and the ADA, that the FMCSA’s revised notice “shall provide for the individualized assessment of applicants who use insulin to treat their diabetes and who are, except for their use of insulin, otherwise qualified under the Federal motor carrier safety regulations.” (Emphasis added.) In response, the FMCSA issued a revision to its 2003 Notice, eliminating the three-year requirement, but establishing a new standard that required submission of a hemoglobin test result “within the range of >=7% and <=10% to meet the minimum period of insulin use requirements, as modified by section 4129(c).” 70 Fed. Reg. 67,777 67,780 (Nov. 8, 2005). In a January 9, 2006 letter to FMCSA, the EEOC expressed concern that the new standard would bar persons demonstrating adequate control of their diabetes from obtaining CMV certification, and urged the FMCSA to adopt a more flexible standard for determining CMV eligibility. The Commission’s letter stated that FMCSA should “consider all relevant medical evidence when determining whether to grant a CMV license to an ITDM driver.”
Comments on the 2006 ANPRM
As FMCSA now considers revising the rules applicable to certifying ITDM CMV drivers, we strongly urge the agency to adopt the least restrictive rules necessary to ensure public safety while allowing for broad expansion of the pool of eligible ITDM CMV drivers. As a first step, and in response to Question 3 on the ANPRM, we again urge the agency to eliminate the A1C standard established in the November 2005 Notice and adopt the guidance set forth in the December 20, 2005 letter from the FMCSA’s Expert Medical Panel. The Panel recommended that the agency consider an individual’s blood glucose levels as one element in an overall screening process that is a part of the current diabetes exemption program, and not as a prescriptive barrier to CMV certification.
Second, we urge FMCSA to give full force to Congress’s instruction that the agency provide for the individualized assessment of ITDM CMV applicants. The EEOC recognizes the important concerns of the FMCSA in ensuring public safety on America’s highways. Nonetheless, Congress has made clear its disapproval not only of a blanket prohibition against certification of ITDM CMV drivers, but also of other broad impediments placed in the way of ITDM CMV drivers seeking certification. In calling for individualized assessment, Congress was making clear the importance of grounding any employment decision restricting the employment opportunities of ITDM CMV drivers on a sound, individualized basis. The phrase “individualized assessment” appears in EEOC’s ADA regulations, in the context of an employer’s “direct threat” defense to a claim of disability discrimination. Under the ADA, an employer may impose a qualification standard or use selection criteria that adversely affect an individual with a disability if the standard or criteria are “shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12113(a). The ADA further states that the term “‘qualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” Id. § 12113(b). Before an employer may use the “direct threat” defense to restrict or bar employment, EEOC regulations provide that the employer must make an “individualized assessment of the employee’s present ability to safely perform the essential functions of the job . . . based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r). EEOC’s regulations further provide that an employer consider the following factors when conducting this “individualized assessment”: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.
Most courts addressing blanket employer policies limiting or barring employees with certain diseases or disorders have ruled that such policies are noncompliant with the ADA’s individualized assessment mandate. For example, in Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002), the court held that a city policy barring ITDM individuals from police officer positions was inconsistent with the ADA and that the proper inquiry would be whether, based on an individualized assessment, an individual poses a direct threat to safety in a police officer position. Accord, Millage v. City of Sioux City, 258 F. Supp. 2d 976 (N.D. Iowa 2003) (questioning the continued viability of a blanket exclusion of insulin-dependent diabetics from positions that require driving); see also Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1028-30 (9th Cir. 2003) (the court rejects the employer’s defense, finding the employer’s medical experts did not have the requisite expertise to meet the “most current medical knowledge” requirement of the direct threat standard; by contrast, the employee’s medical experts were board certified in the relevant disciplines); McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999) (a policy requiring employees to be “100% healed” before returning to work violates the ADA because it precludes individualized assessment of whether each returning employee can perform the essential functions of the job with or without accommodation); see also Toyota Motor Mfg. v. Williams, 534 U.S. 184, 199 (2002) (when assessing whether someone has a “disability” within the meaning of the ADA, an “individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person”); Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468, 480-81 (5th Cir. 2006) (individualized assessment needed to determine whether job applicant’s diabetes “would actually prevent him from performing the requirements of the position”) (emphasis in original).
As these cases make plain, the new statutory obligation of FMCSA to provide ITDM drivers seeking CMV certification with an individualized assessment of their fitness means first, that the agency should not impose blanket rules or blood glucose cut off scores barring or limiting the certification of ITDM drivers; and second, that all ITDM drivers seeking certification should be individually assessed for their ability to drive CMVs by physicians with expertise in diabetes treatment. We also urge FMCSA to streamline the process for certifying ITDM CMV drivers, and that whatever system or process the agency establishes in this regard be less cumbersome and time consuming than the current one.
The Commission believes that a positive change in FMCSA’s rules applicable to ITDM drivers is likely to have a ripple effect through the economy, enlarging the pool of persons able to obtain not only CMV positions, but also other jobs that include driving as an essential job function. As the Commission noted when issuing its Q&A on diabetes in 2003, “America works best when all Americans work.”
If you have further questions or would like to discuss this matter, please feel free to call either Peter S. Gray, Senior Attorney Advisor (202-663-4604) or Carol R. Miaskoff, Assistant Legal Counsel (202-663-4645).
Peggy R. Mastroianni
Associate Legal Counsel
1 The document is available on the EEOC web site at: http://www.eeoc.gov/facts/diabetes.html.
2 The process that the agency established in 2003 has proved cumbersome and time consuming, resulting in few certifications. Two years passed from the agency’s issuance of the September 2003 Notice and the certification of ITDM CMV drivers: the first four ITDM drivers received CMV certifications in September 2005. See 70 Fed. Reg. 52,465 (Sept. 2, 2005).
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