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meaningless for most of the people with diabetes who – according to medical science – are safe, reliable drivers.

Exemption Program Provides Limited Protections

The Association is very disappointed that the proposed protocol is designed to be implemented through an exemption program. Rather, the medical qualification standards should themselves be changed to eliminate the current blanket ban and replace it with individual assessment utilizing the protocol discussed above. This approach is consistent with the legislative mandate by Congress, and consistent with current civil rights laws.

Another exemption program would be redundant. The Department of Transportation has been studying – and receiving advice from its own expert panels recommending change in this area – since the mid-1980’s. The federal government and the vast majority of states have successfully experimented with allowing a limited number of drivers with insulin- treated diabetes to operate commercial vehicles.

The proposed exemption program will face a number of hurdles that a change in the regulation itself would not. Such a program risks repeating the fate of the successful but short-lived 1993 Federal Highway Administration Diabetes Waiver Program that was prematurely terminated due to legal proceedings on a different FHWA exemption program. Moreover, an exemption program may not protect qualified drivers who use insulin from

discrimination by particularly true in

individual light of the

employers – making the Supreme Court decision in

program

of

limited

use.

This

is

Albertsons, Inc. v. Kirkingberg, 527

U.S.

555

(1999)

where

the

Court

permitted

an

employer

to

ignore

a

waiver

granted

under

the DOT’s former vision waiver program. While there may be a number distinguish an exemption program based on the record established by

of ways to attempt to FMCSA here from the

vision waiver program at issue in Kirkingberg, nevertheless, an exemption program spawn potentially successful court challenges. In reality, such a program would also in much more discrimination that never reaches the point of litigation.

would result

Blanket bans are antithetical to purpose of the Americans with Disability Act and certainly to the emphasis on individual assessment in the Supreme Court’s decisions in the Sutton trilogy. (Sutton v. United Airline, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc. 527 U.S. 516 (1999); Albertsons, Inc. v. Kirkingberg, 527 U.S. 555 (1999)) As such, they should not continue to be the general regulatory standard when, as here, the Department of Transportation has determined that individual assessment is feasible.

Blanket bans send a message to the employers throughout the country: it is acceptable to judge a person based on the disease he or she has, rather than upon what that individual can or cannot do. In this case, the impact is widespread since – in addition to its direct impact on commercial drivers – the Department of Transportation standard is looked to as a guide by employers throughout the country. Thus, while not legally applicable to areas other than commercial driving, the Department’s blanket prohibition is often adopted by employers to limit the opportunities of people with diabetes in positions ranging from mechanics, to factory workers, to sales positions requiring driving.

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