Although sleep apnea in trucking is not a new topic, it’s come back to the forefront with a force, the United States Supreme Court has declined to hear a wrongful termination suit filed against a certain fleet carrier. In declining to hear the suit, the decision could create a legal precedent allowing for carrier-mandated sleep apnea testing.
But what are the details behind this case the Supreme Court refuses to hear?
In 2013, a truck driver sued the company he worked for based on a wrongful termination after he refused to take a sleep apnea test. All of this stemmed from the company changing their policy in 2010 to include a mandatory sleep apnea test.
They based the change on whether the truck driver had a BMI of 35 or greater. According to the BMI index, a BMI of 25 to 29.9 qualified a person as overweight, anything over 30 is considered obese.
The employee in question even brought a note from his doctor explaining that further testing was not necessary at this point, but the company refused to recognize the note. When the employee refused to take the test, the carrier suspended him indefinitely.
When asked, the employee’s attorney stated that the person in question had never been involved in any accidents nor had he exhibited any issues with fatigue in the past. As a matter of fact, he had even been given a safe driving award by a previous employer.
The lawsuit brought before the court was filed claiming discrimination under the Americans with Disabilities Act. When the case made it to the 8th Circuit Court of Appeals, the court ruled in the company’s favor.
In their ruling the court stated that since sleep apnea could pose a major risk to the safety of the driver and those on the road, the company’s request for a medical examination was valid. It went on to state that the trucker’s high BMI made him at greater risk for sleep apnea and potential road injury.
Since the Supreme Court decided to pass on the case, the original court’s ruling will remain upheld. This means other motor carriers contemplating a similar measure have free rein to create similar edicts. Does this mean these carriers can consider themselves free from future legal challenges, however? Well, not exactly.
What is Sleep Apnea?
For those unfamiliar with sleep apnea, it quite literally comes from the Greek root for the word “apnea”, which quite literally means “without breath.” The most common type of apnea is called obstructive sleep apnea, in which a sleeping patient’s tongue falls back against his or her soft palate. Which has a result of effectively closing the airway.
People who suffer from sleep apnea often find themselves stopping and starting breathing repeatedly throughout the night, sometimes for 30 seconds to a minute or even longer. In most cases, the person suffering from sleep apnea doesn’t even know this is happening because the breathing stoppage doesn’t cause a full awakening. Still, it does cause other health problems down the road.
A common sign of sleep apnea is when one is finding themselves fighting sleepiness during the daytime, whether at work or in other situations. At quiet moments in the day, one may find themselves drifting or unwittingly falling asleep. Another sign of sleep apnea is if one snores loudly at night or makes gasping or choking sounds as they sleep.
Other potential signs include:
- Waking up with a headache (indicating not enough oxygen is getting to the brain during sleep)
- Having trouble remembering or learning new things
- Having trouble concentrating
- Undergoing consistent mood swings or feeling irritable or depressed and not knowing why
- Frequently waking up in the night to urinate
- Waking up with a dry mouth or sore throat
But even those who may not exhibit these symptoms could find themselves on the wrong end of an Obstructive Sleep Apnea (OSA) check if their motor carrier decides now is the time for a check. How do they feel about that?
Current Recommendations and Trucker Opinions
Currently, the Federal Motor Carrier Safety Administration (FMCSA) Medical Review Board recommends that the FMCSA create a regulation that would require truckers to meet several criteria, which we have reported on before, but of which one includes if a truck driver has a BMI higher than 33, they must be required to undergo OSA testing.
Still, no such regulation has been issued to-date, and under the new administration, it is unlikely such a regulation may see the light of day. This news is music to the ears of many truck drivers who consider mandatory OSA testing a privacy concern.
Truckers also consider a night spent in a testing facility just one other night that they should spend away from their families. In particular, the trucker who sued his carrier felt that one result of the mandatory testing is that a CPAP machine could be ordered, which would then be deducted from his pay.
A Confusing Story on Sleep Apnea
Many question whether truckers are being over diagnosed or sent in for testing when it isn’t necessary. The main reason behind this is that there are several factors that increase the likelihood of someone having sleep apnea.
The truth is, some believe that a lot of clinics are using training and OSA rules to generate additional profit. Take, for example, the trucker above afraid he would have to purchase a CPAP machine. The medical center he would have had to purchase that from likely would have marked it up a bit for the benefit of their own bottom line.
Another question surrounds the use of BMI as a sole indicator. Having a large neck size and a greater BMI does not necessarily put one at greater risk for having sleep apnea. Thus, they should not be the only criteria used when deciding on whether a truck driver should go in for testing.
The fact is, there’s been confusions surrounding sleep apnea at the federal level for a long time. In 2000, 2008 and 2012, the FMCSA received recommendations from the federal Medical Review Board regarding diagnosing and screening for sleep apnea, and there’s been a ton of inconsistency in how these recommendations have been applied.
In 2013, a law was passed requiring the FMCSA to start a rulemaking process allowing industry comment. Then in 2014, the National Registry of Certified Medical Examiners weighted in.
Still, that didn’t clarify the situation, by the fall of 2015, U.S. lawmakers were alerting the FMCSA that training facilities were telling examiners to test for sleep apnea when no test was required. In the same year, the FMCSA issued a bulletin to medical examiners and training organizations that does nothing more than do things like “encourage” and provide medical examiners the ability to “exercise their right to medical judgement.” None of this clarified the situation any further.
Still, we can help shed some light on the issue by answering your burning questions:
- Will I automatically lose my job if I have sleep apnea? No
- How long does a diagnostics test take? Generally, one night in a sleep lab or undergoing an at home seep test.
- What if I do not have health insurance? Although current federal rules require carriers to provide insurance, there are usually state programs that will step in to ensure truck drivers who need to undergo specific testing do so.
- What are the treatment options for obstructive sleep apnea? Possible treatment options for OSA include weight loss, utilization of a mandibular advancement device, a CPAP or PAP device, breathing therapy, or in extreme situations, surgery.
Sleep Apnea is a Serious Condition, but Don’t Be Afraid
Still, despite court cases, motor carrier mandates and confusing signals from the feds, sleep apnea remains a serious condition that requires consideration. Daytime sleepiness is obviously a problem for those at the wheel of an 80,000-pound Class-8 big rig.
From a personal standpoint, sleep apnea also puts one at risk of everything from high blood pressure and stroke to cognitive problems due to a lack of oxygen to the brain. Heart problems can also result from a lack of sleep.
If you are having these conditions, don’t be afraid to bring it up at your next physical exam. The fear of being diagnosed with sleep apnea isn’t as severe as if you were to fall asleep behind the wheel and cause a terrible accident.
Also, consider this, you aren’t alone. Did you know that 1 in 5 adults are affected by at least mild sleep apnea? As a professional truck driver, never be intimidated or embarrassed regarding a potential sleep apnea diagnosis. It certainly is not the end of the world and nor is it the end of your career.
Approach it with a calm resolve, and you’ll be sure to get the help you need without having to take a ton of time off the road or away from your family, regardless of what the feds or your motor carrier says. Hopefully, in the meantime, we can get some clarification on the matter.