You Snooze You Lose: NJ Appellate Division Affirms Dismissal of Sleep Apnea Disability Bias Class Action

On August 15, 2022, the New Jersey Appellate Division declined to reinstate a disability bias class action brought by a New Jersey Transit train operator who was required undergo a sleep apnea screening due to the results of his physical examination as required by NJ Transit’s policy stemming from safety concerns as a result of a 2016 train accident. The three-judge panel upheld a trial court’s ruling that New Jersey Transit did not treat the employee unlawfully when his routine physical exam found him high risk for sleep apnea and removed him from service to be assessed for the disorder.

Facts

Anthony Alleyne was a member of the Brotherhood of Locomotive Engineer and Trainmen (BLET). Pursuant to Rule 29 of the BLET’s Collective Bargaining Agreement (CBA), employees were required to take and pass examinations connected with their duties. The examinations under the CBA included physical examinations. Safety sensitive employees were also required to undergo a “Sleep Assessment Monitoring Procedure” which included a measurement of the employee’s height and weight, body mass index (BMI), and neck circumference, and a review of the employee’s Epworth Sleepiness Scale questionnaire. NJ Transit’s Medical Department found that Alleyne’s BMI was greater than 35, which is considered a high-risk factor for sleep apnea. Alleyne was then removed from service to be assessed for the disorder; he thereafter was diagnosed with sleep apnea but cleared to return to work after receiving treatment.

Alleyne thereafter sued NJ Transit claiming that he was removed from service based on his physical impairment or perceived impairment and NJ Transit's sleep apnea policy was discriminatorily applied to him and the class members, thereby violating the New Jersey Law Against Discrimination (NJLAD) and the Workers' Compensation Act. The trial court found that Alleyne was removed from service for a legitimate non-discriminatory reason: his medical condition posed a serious threat of injury to the health and safety of himself and others.

The Appellate Division Decision

The Appellate Division affirmed and found that NJ Transit instituted the Sleep Apnea Screening Policy in 2017 after a 2016 train crash at Hoboken Terminal that left one person dead and more than 100 people injured when a train operator fell asleep because of undiagnosed sleep apnea. Under the new policy, all rail operations employees are screened for sleep apnea to ensure safety, and because Alleyne was a locomotive engineer, he was also screened. However, the Appellate Court agreed with Alleyne’s contention that the trial court incorrectly found that he did not have a disability under the Americans with Disabilities Act (ADA) as a means to grant NJ Transit summary judgment because he did not bring claims under the ADA. Thus, he brought a claim under the NJLAD.

The Appellate Division found that Alleyne did not present, nor could any court find any authority on whether sleep apnea is considered a disability under the NJLAD. Second, while Alleyne argued that NJ Transit only removed him from his job based on his BMI, he did not put forward any expert testimony on the cause. Third, NJ Transit did not fail to provide him with an accommodation because he was allowed to return to work and he was only removed from his post to ensure that he could safely operate a train, a decision that does not violate the NJLAD. Lastly, the court found that Alleyne was properly reimbursed for the sleep apnea treatment in accordance with the terms of the CBA and NJ Transit was not obligated to pay for the treatment under state law.

Bottom Line

Employers are not required to accommodate an employee who cannot perform the essential job functions of the job with or without an accommodation. In this case, there was no accommodation available other than leave that would have permitted the employee to perform his job safely. After successfully completing treatment, the employee was returned to service in the same position he held prior to testing for, and diagnosis of, sleep apnea.

Employers should be aware of the types of medical examinations they are required to pay for their employees. Under the NJLAD, an employer is required to pay the costs associated with medical examinations requested by employers when the “examination is made at the request or direction of the employer, [or] by a physician designated by said employer.”

For more information regarding this decision, for guidance navigating requests for medical accommodations and other legal developments resulting from employment actions, please contact Dina M. Mastellone, Esq., lead Partner in the firm’s Human Resources Counseling & Compliance Practice Group via email here or Counsel Brigette N. Eagan, Esq. via email here or call 973.533.0777.