There were two landmark decisions issued by the U.S. Supreme Court last year. In the first, Albertson’s v. Kirkinburg, the court ruled that a trucking employer was justified in refusing to hire a driver who did not fully meet Department of Transportation vision requirements, even though DOT had granted that driver a waiver.
In the second decision, Murphy v. United Parcel Service, the court held that UPS was justified in discharging a mechanic who could not pass a driver physical because of hypertension. UPS requires its mechanics, as a condition of employment, to be able to drive the vehicles on which they work.
Some other recent decisions by lower courts also provide guidance to trucking employers in applying this troublesome statute. For instance, the ADA requires employers to make "reasonable accommodation" to aid employment for persons with disabilities. Thoms v. Arkansas Best Freight System helps give meaning to the term "reasonable accommodation."
Non-management employees at ABF’s Milwaukee terminal fell into two categories: clerical workers or driver/dock laborers. The company doesn’t maintain a pure dock laborer or driver position at the terminal. Driver/dock laborers do both tasks.
In June 1994, Thoms began working at the terminal as a casual driver/dock laborer. In October he had to be hospitalized and was diagnosed as an insulin-dependent diabetic. After he returned to work, the terminal manager sent him to a company doctor for examination. The company doctor advised ABF that Thoms was insulin-dependent and therefore not qualified to drive in interstate commerce. ABF terminated his employment.
Thoms sued ABF, alleging discrimination under the ADA. He contended that the company could have made reasonable accommodation for his disability by eliminating the driving requirement and assigning him only to yard spotting and duties on the dock. The evidence in the suit established that, after his insulin medication was adjusted, Thoms experienced no further difficulty and in fact maintained an excellent attendance record at his new job.
A District Judge granted ABF’s motion to dismiss the suit. He noted that what Thoms wanted was for ABF to reallocate an essential job function and create a new position solely for him, but the ADA "does not require reassignment to a position that does not exist."
While the Kirkinburg decision established that a carrier may legally insist upon compliance with the letter of the DOT physical standards, it is also true that companies, as a matter of policy, may require physical qualifications that exceed the minimum DOT standards. However, they must be prepared to justify those more stringent standards.
For example, a U.S. District Court held a bus line liable for violation of ADA when it refused to hire a driver who was more obese than company policy permitted, even though DOT rules impose no weight limits.
Also, consider the fact that Federal Motor Carrier Safety Regulations impose no standard pertaining to the ability to lift and carry weight. Assume that a flatbed carrier requires its drivers to be able to handle chains and tarps weighing up to 100 pounds. What should the carrier do when a driver applicant is restricted to lifting no more than 20 pounds because of a back injury?
That person clearly cannot perform the essential functions of the job, but the question doesn't end there. The carrier must be able to prove that no reasonable accommodation can be made. Possibly the carrier could establish that the economics of its operation are such that it cannot provide a co-driver or a helper and still show a profit on the freight.
On the other hand, this is an area where it's impossible to draw hard and fast lines. Accommodation that is reasonable in some circumstances may be unreasonable in others. For example, another carrier engaged in local pickup and delivery might be able to assign such a driver to a route where all the packages weigh no more than 20 pounds. The heart of the matter is that these issues must be weighed consciously, and any carrier must be prepared to back up its decision in court.