Sleep apnea

A New Jersey trucking company has been ordered to pay a yard switcher $30,000 for failing to reinstate him after he was diagnosed with sleep apnea even though he was repeatedly cleared for duty by medical examiners.

Essex County-based trucking company P. Judge & Sons, Inc. was ordered to pay a former employee $30,000 for lost wages and pain and suffering, according to a news release from the New Jersey Office of Attorney General.

The employee, referred to in the release only by the initials “R.B.” in order to protect this medical privacy, worked as a yard switcher P. Judge & Sons facility in Port Newark.

The Attorney General Gurbir S. Grewal writes:

“In March 2015, R.B. underwent a physical exam required periodically for workers in his job by the U.S. Department of Transportation. The exam resulted in a diagnosis of sleep apnea, and R.B. was placed on medical leave. R.B. then began treatment for his apnea and later underwent a physical examination at Concentra Medical Center – the company’s medical provider – in Newark. As a result of the physical, R.B. was issued a Medical Examiner’s Certificate (MEC) clearing him to return to his job. The MEC was valid for one month, and R.B. was instructed to continue treatment for his apnea after resuming work.

Despite the MEC clearing him to return, R.B. was denied reinstatement. Allegedly, his supervisor told R.B. that he needed an MEC valid for at least three months. However, after R.B. underwent a subsequent physical examination and obtained an MEC valid for three months, he was again denied reinstatement.

After seven months of being out of work – and repeated denials of reinstatement despite two MECs declaring him fit R.B. filed a formal Complaint with the Division on Civil Rights.

During an investigation by the Division, one company official at P. Judge & Sons told investigators that R.B. was not permitted to resume work because he was continuing to receive treatment for his sleep apnea, and the company is “under no obligation to employ individuals whose health is non-compliant.”

Another company official argued that R.B. technically was not terminated. Rather, the official said, R.B. never contacted the company again after being denied reinstatement the last time. The same official contended that reinstating R.B. was a potential liability, because an employee afflicted with sleep apnea “can go to work… three months goes by, then he’s off, has to go to the doctor, and we’re getting charged by Concentra for the medical treatment.”

Division Director Sashihara noted that a Division investigation found nothing in DOT regulations, or in P. Judge & Sons’ own internal policies, to support the suggestion that the company was barred from reinstating R.B. once he presented either the one-month or three-month MEC.”

Sashihara said, “No matter the opinions or intentions behind it, employers and managers with no medical training cannot simply decide to terminate a worker based solely on assumptions, internet articles and the anecdotal experiences related by people they know, which is what we allege took place here.”

In addition to paying R.B. $30,000, P. Judge & Sons must also adopt new workplace policies and submit to two years of state monitoring company treatment of employees with disabilities.