Home > News & Results > Publications > Legally Prescribed Medication, the Section 40.327(B) Notice of the Likelihood of Posing Significant Safety Risks, and the Motor Carrier Employer’s Dilemma

Legally Prescribed Medication, the Section 40.327(B) Notice of the Likelihood of Posing Significant Safety Risks, and the Motor Carrier Employer’s Dilemma

By: Jarad L. Kent; Betty S. Young

In January of 2018, the Office of General Counsel and Office of Drug and Alcohol Policy and Compliance of the Department of Transportation provided guidance on 49 C.F.R. Part 40, providing a question and answer on a Medical Review Officer’s reporting obligations under 49 C.F.R. §40.135 and §40.327 when one learns about legally prescribed prescription medications (“LPMs”) taken by an employee under evaluation where the LPMs would likely make an employee medically unqualified or would likely pose a significant safety risk in the performance of the employee’s safety-sensitive function.[i] Although the guidance provided is geared towards the Medical Review Officer’s (“MRO”) reporting obligations, it poses an interesting dilemma for motor carrier employers when they receive notice from a MRO pursuant to 49 C.F.R. §40.327 that the continuance of the employee’s safety-sensitive function is likely to pose a significant safety risk because the employee is taking or has taken a LPM for the employee’s medical condition (“40.327 Notice”).

This dilemma arises because it is the motor carrier employer’s duty to make the final call on whether it should permit the employee to operate its commercial motor vehicles – not the MRO’s duty to do so. In light of the division of duties between the MRO and the employer, this judgment call leaves the motor carrier employer in quite the precarious position as it exposes the employer to possible state and federal disability discrimination claims as well as possible liability for negligence claims brought by those who share the road with the employer’s commercial truck driver should an accident ensue. If the employer permits the employee to operate its commercial motor vehicle despite having been warned by the MRO that letting the employee drive would likely pose a significant safety risk, it could give a future plaintiff the opportunity to argue that the employer knowingly, and thus recklessly, permitted the employee to operate the tractor-trailer anyway despite receiving a 40.327 Notice of the significant safety risks; however, if  the employer refuses employment to the employee based on the employee’s need for LPMs for his or her medical condition despite receiving a passing medical examination certificate under the Federal Motor Carrier Safety Regulations (“FMCSR”), the employer may then face potential state and federal disability discrimination claims brought by the employee. In light of the possible scenarios, what is a motor carrier employer to do?

This article explores this precarious scenario and provides both insight into the relevant employment laws at play as well as suggestions on risk-minimizing practices motor carrier employers can consider when revising their policies and procedures to better shield their interests moving forward. Although this article presents suggested best practices for the industry, please note these suggestions are neither a guarantee that lawsuits will not ensue nor do they serve as a guaranteed defense victory in claims brought as all claims, though as similar as they may be, still have their own variances which can change the outcome of each case.

As we begin exploring the presented dilemma, we first begin with a brief general discussion on the scope of state and federal disability discrimination laws with respect to motor carriers subject to the FMCSR and how courts have interpreted these laws in similar context.[ii]

The applicable federal law creating a right of action for disability discrimination claims is the Americans with Disabilities Act (“ADA”). Under the ADA, a plaintiff must prove that the employer defendant is covered by the ADA, that he or she has a “disability”, that he or she is “qualified for the position sought, and that an adverse employment decision was made because of his or her disability.[iii]  “Disability” within the meaning of the ADA is present when there is “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”[iv] Determination of disability is based on individualized inquiries.[v] Whether corrective measures are or are not taken to correct the impairment is not determinative. Instead, courts will look to what impairments are actually faced that in fact substantially limit a major life activity.[vi] Whether a person is “qualified” also depends on the circumstances wherein qualifications may be statutorily set forth and/or established by the employer. This too, is an individualized inquiry. Texas law on disability discrimination claims are similar and mimic that of the ADA, also requiring proof of both the presence of a “disability” and that one is qualified for the particular job in question.[vii]

In light of the nature of such inquiries as to the existence of a claimed “disability” and qualifications for the position in question, employers subject to the FMCSR need not fear when presented with a 40.327 Notice as these two elements of a disability discrimination claim seem to pose the greatest issues for truck driver plaintiffs when bringing claims against their FMCSR-governed employers.[viii] As one federal district court noted, “the existence of such a medical condition or even the necessity of taking medication to correct [the medical condition] does not necessarily render an individual disabled or entitled to raise an ADA claim in the face of an employer’s refusal to hire.”[ix]  Additionally, another hurdle these plaintiffs may likely deal with is meeting the “major life activity” requirement where driving freight-carrying tractor-trailer trucks over long distances and for extended periods of time may be perceived as a specific job within a broader class of truck driving jobs, thereby supporting an argument that certain commercial truck driving positions might not be sufficiently broad enough to satisfy the “major life activity requirement” in the disability discrimination analysis.[x] Furthermore, both federal and Texas state laws recognize, to a certain degree, the employer’s autonomy in determining individual qualifications and business necessity for screening candidates for certain safety-sensitive positions, such as commercial truck driving positions.[xi] The FMCSR, specifically 49 C.F.R. §390.3(d), explicitly recognizes an employer’s right to employ more stringent standards pertaining to safety than that promulgated by the Department of Transportation.[xii] Thus, in the scenario at issue, what are some best practices motor carrier employers can employ when dealing with current or prospective employees that take legally prescribed medication for medical conditions, for which the employer has received a 40.327 Notice, wherein such individual has been deemed likely to pose a significant safety risking when operating a commercial motor vehicle?

One practice is to employ stricter safety standards with respect to driver qualifications for employers’ commercial truck driver positions and to expressly communicate the qualifications related to each type of truck driver position in the respective job descriptions posted. Being clear on the rigors of a particular safety-sensitive position may prove useful in addressing the “qualifications” element of a disability claim. Another practice one can employ pertains to the job application process where the employer can screen candidates for certain safety-sensitive trucking positions based on questions targeted to determine the candidate’s ability to perform specific job functions of the trucking position at hand.[xiii] Employers may also, in creating stricter safety standards for certain safety-sensitive positions, promulgate a drug review list containing certain legally prescribed medications that have side effects that could inhibit a person’s alertness in the operation of motor vehicles, thus, serving as grounds for disqualifying the candidate for certain trucking positions.[xiv] For example, in 2001 in E.E.O.C. v. J.B. Hunt Transportation, Inc., the United States District Court in the northern district of New York found no issue with an employer’s termination of certain conditional offers of employment based on certain employees’ uses of certain LPMs listed on the employer’s self-generated drug review list.[xv] This drug review list was created by the company to address safety issues dealing with certain side effects of certain LPMs and to screen their over-the-road commercial truck driver employees based on the company’s safety-related qualifications and company safety standards.[xvi] This list contained more drugs than those enumerated in the FMCSR.[xvii] Although the E.E.O.C. appealed this district court decision, the Second Circuit Court affirmed on appeal.[xviii] Creating policies and procedures on handling case-by-case determinations dealing with LPMs that may likely pose significant safety risks can also include the employer making it standard to obtain from the prospective employee’s prescribing physician a statement about the effects of the particular drug at issue and its effects on transportation safety based on the physician’s knowledge of the driver’s medical history and the rigors associated with commercial truck driving for further determination.[xix] It also does not hurt to obtain a second opinion as to the particular employee’s fitness to operate the commercial vehicle or to have the employee find an alternative LPM that will not pose a significant safety risk in operating motor vehicles. To do so or at least making the effort to do so may show good faith in complying with the FMCSR in performing the employer’s duty to screen candidates for the public’s safety so as to refute a disability discrimination and/or negligent hiring claim.

The take away from all of this? So long as commercial trucking companies are making a good faith effort to comply with the FMCSR by adequately screening their truck drivers for qualifications before putting them out on the road through carefully promulgated safety standards based on each position’s specific rigors, trucking companies will stand in better footing when faced with these types of claims. This is so because successfully arguing a disability discrimination claim when an employer acts in both the best interest of the driver and the public in terms of safety and employs policies and procedures based on business necessity so as to comply with federal regulations creates an uphill battle for the plaintiff. Additionally, should an employer decide to employ a driver despite receiving a 40.327 Notice, employing diligent steps while documenting such steps such as getting second opinions by licensed physicians support the presence of due diligence in assessing driver qualifications, as opposed to an appearance of lack of care, will also assist employers in their defense against potential negligent hiring claims.
DISCLAIMER:  This article and the recommendations made within is not a guarantee of success in defense of claims brought against employers. Each claim is different and must be evaluated on a case-by-case basis. Additionally, please contact your attorney to further determine what policies and procedures you should implement and its specific content.

[i] U.S. Department of Transportation, January 2018 Part 40 Questions and Answers, https://www.transportation.gov/sites/dot.gov/files/pictures/01_18_Part40_QA.pdf.

[ii] Although there are various court cases relating to medical conditions and LPPMs taken by employees who filed suit against their employers alleging disability discrimination in various jurisdictions, the cases we found dealt with medical conditions and or drugs that automatically disqualified the particular employee from meeting the statutory requirements for being physically qualified under the FMCSR. Since this article addresses a narrower scenario wherein the employee has passed the requisite drug test and has obtained a passing physical examination under DOT regulations but such passing is accompanied by a 40.327 Notice, not very many cases have specifically spoken to this narrow scenario.

[iii] 42 U.S.C.A. 12102(2), 12112(a) (2018); Burton v. Metropolitan Transp. Authority, 244 F.Supp.2d 252, 257 (S.D.N.Y. 2003); Kapche v. City of San Antonio, 176 F.3d 840 (5th Cir. 1999), on remand 2000 WL 33348192.

[iv] 42 U.S.C.A. 12102(2) (2018). For further in depth discussion on the meaning of “disability”, see Sutton v. United Air Lines, Inc., 527 U.S. 471, 478-483 (1999) (noting whether a person has a “disability” under the ADA looks to how the effect of the impairment  affects the person’s life and whether that effect is substantially limiting).

[v] Sutton, supra, 527 U.S. at 483.

[vi] Sutton, supra, 527 U.S. at 488.

[vii] See Texas Labor Code §21.051 (2018). A prima facie case of disability discrimination under the Texas Commission on Human Rights Act requires a showing by the plaintiff that he or she (1) suffered from a disability; (2) was qualified for the job; and (3) was subject to adverse employment action based on the disability. Dallas Cnty. Schools v. Green, 518 S.W.3d 449, 454 (Tex.App.- Dallas 2016), reserved on other grounds unrelated to elements of a disability discrimination claim in Green v. Dallas County Schools, 537 S.W.3d 501 (Tex. 2017); see also Eubank v. Lockhart Independent School Dist., 229 F.Supp.3d 552, 560 (W.D. Tex. 2017) (combined discussion on prima facie elements of disability discrimination claims under the TCHRA and the ADA and how claims are similar), appeal filed July 14, 2017.

[viii] See, e.g., E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69, 74-75 (2nd Cir. 2003)(emphasizing how the Court would not presume a mistaken assumption of disability based only on an employer’s decision not to hire certain candidates); Tate v. Farmland Industries, Inc., 268 F.3d 989 (10th Cir. 2001) (employee who took medication to control focal seizures not qualified for position to operate commercial motor vehicle under DOT regulations 49 C.F.R. §391.41); Williams v. J.B. Hunt Transport, Inc., 132 F.Supp.3d 858, 870 (S.D. Tex. 2015) (physician determined plaintiff tractor-trailer driver was not physically qualified to drive a truck under DOT regulations and thus, lack of the requisite medical certification defeated his disability discrimination claim); Newman v. Chevron U.S.A., 979 F. Supp. 1085, 1090 (S.D. Tex., 1997) (truck driver could not show he was qualified for the truck driver position because he was unable to perform the essential functions of driving a gasoline truck, though the court noted that defendant failed to provide a job description for the position, which is part of the consideration under 29 C.F.R. § 1630.2(n)(3)).

[ix] E.E.O.C. v. J.B. Hunt Transport, Inc., 128 F.Supp.2d 117, 125-127 (N.D.N.Y., Feb. 8, 2001), citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 483-490 (1999). E.E.O.C. appealed the federal district court’s ruling. On appeal, the Second Circuit Court affirmed the lower court’s ruling. See E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2nd Cir. 2003), superseded by statute as stated in Wegner v. Upstate Farms Co-op, Inc., 560 Fed.Appx. 22 (2nd Cir. 2014) (not selected for publication).

[x] See E.E.O.C. v. J.B. Hunt Transport, Inc., supra, 321 F.3d at 75, citing Sutton, supra, 527 U.S. at 493 and Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir. 1998), noting how “driving sleeper trucks is a specific job within the broader class of truck driving jobs”.

[xi] See 42 U.S.C.A. §12101(b) (2018); Texas Labor Code §21.105 (2018); see also Texas Labor Code §21.115 (2018) (the affirmative defense of business necessity to employment discrimination claims including a claim of disability discrimination); Prado v. Continental Air Transport Co., 982 F. Supp. 1304 (N.D. Ill. 1997)(discussing how employers having the right to establish job qualification standards that could have the effect of denying employment to disabled persons based on disabilities based on the nature of the job); E.E.O.C. v. J. B. Hunt Transportation, Inc., supra, at 118-119, affirmed on appeal, 321 F.3d 69 (2nd Cir. 2003) (discussing how the FMCSR allows employers to require or enforce “more stringent requirements relating to safety of operation and employee safety and health”), citing 49 C.F.R. §390.3(d)).

[xii] Section (d) of 49 C.F.R. §390.3 states: “Additional Requirements. Nothing in subchapter B of this chapter shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health.”

[xiii] Although employers may ask applicants about their ability to perform certain job functions, employers cannot ask employment candidates about any disabilities.

[xiv] See E.E.O.C. v. J.B. Hunt Transport, Inc., supra, 128 F.Supp.2d at 119-120, n.2, where the company created a drug review list intended to address certain drugs and their known side effects that could impede a person’s ability to safely operate commercial tractor-trailers while taking the medication, to show good faith effort in complying with the FMCSR based on the company’s duty to the public in terms of employing safe commercial truck drivers out on the road.

[xv] Id. at 118-120.

[xvi] Id. at 119-120, n. 2.

[xvii] Id.

[xviii] See generally E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2nd Cir. 2003).

[xix] Section L, Paragraph 2 of Appendix A to Part 391 – Medical Advisory Criteria. 80 F.R. 22822, Apr. 23, 2015).