Passing a DOT medical exam is a ‘marginal function’ of the job?

by McAfee & Taft

In a recent opinion by the Eleventh Circuit Court of Appeals involving a Type-1 insulin-dependent diabetic, the court found that passing a Department of Transportation medical examination was an impermissible “qualification standard” under the Americans with Disabilities Act. Are you scratching your heads? Here’s the court’s logic.

A conditional offer of employment

FedEx offered Richard Samson, an experienced vehicle mechanic, a job as senior global vehicle technician/DOT/CDL conditioned upon Samson passing a DOT medical exam as required by the Federal Motor Carrier Safety Regulations (FMCSR) for commercial motor vehicle drivers who transport property or passengers in interstate commerce. FedEx employs technicians to maintain, troubleshoot and repairs its trucks. The FedEx job description requires technicians to meet FMCSR qualifications. Under the FMCSR, insulin-dependent diabetics are automatically disqualified from being medically certified as physically qualified to operate a commercial motor vehicle in interstate commerce.

When Samson failed the DOT medical exam due to his diabetes, FedEx withdrew its employment offer, claiming Samson did not qualify for the technician position. Samson sued for disability discrimination.

Do you actually do what your job description says you do?

FedEx_trucksThe court first looked at the job description and compared its listed essential functions to what technicians really do. Remember, essential functions are the “fundamental job duties” of the employment position, but do not include the “marginal functions of the position.” Based upon the evidence presented, the court determined that summary judgment on this basis was inappropriate because while there was some evidence that supported a finding that test-driving interstate vehicles was an essential function, other evidence that supported a finding that test-driving was a marginal function. In fact, as it turned out there were nine other licensed truck drivers at the particular FedEx facility among whom test-driving responsibilities could be distributed. The person who was hired in place of Samson testified that the amount of time he actually spends test-driving was low – in three years, he had only test-driven FedEx trucks three times. Other technicians throughout the state test-drive an average of 3.71 hours per year. The court concluded, however, that reasonable jurors could differ as to whether test-driving FedEx trucks is an essential function of the technician position. This question should have been left for determination by the jury, and the court was wrong to rule as a matter of law.

The court then determined whether the FMCSR provided FedEx a complete defense to Samson’s claims, assuming that test-driving was an essential function of the job. The court said the focus should be on whether the position for which Samson applied required the transport of property or passengers in interstate commerce – not on the nature of the employer’s whole business. According to the court, whether the FMCSR obliged Samson to obtain DOT medical certification hinged on whether the test-driving constituted transportation of property or passengers in interstate commerce.

Based on the record before the court, it concluded that test-driving did not constitute transporting property or passengers in interstate commerce. The incumbent technician testified he had never test-driven a FedEx vehicle across state lines or test-driven a FedEx vehicle carrying cargo. As a result, the court concluded that the occasional test-driving of empty FedEx trucks within the state did not constitute the transportation of property or passengers in interstate commerce. As a result, the FMCSR did not oblige FedEx to require Samson to obtain DOT medical certification to be qualified for the technician position, meaning the FMCSR did not provide a defense to the disability discrimination claim. The court reversed and remanded the case to the district court for further proceedings, including a determination of whether summary judgment should be entered for Samson on his claim that FedEx’s medical examination requirement is an impermissible qualification standard.

The takeaway

Most of us given these facts would have immediately assumed that if a job description required the ability to test-drive trucks that are driven in interstate commerce, passing a DOT physical would be essential to the determination of whether an applicant is qualified. Here, the underlying facts establishing just how infrequently test-driving is required undercut the prior determination of test-driving being an essential function of the job. This case illustrates just how important it is to really analyze what functions must be performed in a particular position and how critical the line between essential function and marginal functions can be.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McAfee & Taft | Attorney Advertising

Written by:

McAfee & Taft

McAfee & Taft on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.