dissenting:

The majority subjects Albertson’s to liability under the ADA for requiring a commercial truck driver to comply with the visual acuity regulations of the Department of Transportation as an essential function of his job rather *1238 than letting him participate in an experimental program that waived those requirements but had not been found safe. I must dissent.

Complying with current DOT safety requirements was an essential function of Kirk-ingburg’s job at Albertson’s. 1 There is no dispute that his eyesight didn’t , meet them. He could not be certified. But several months' before- he lost his certification, the FHWA decided to select a group of experienced monocular drivers with clean safety records to be licensed for a three year study of the relationship between visual disorders and commercial motor vehicle safety. Kirk-ingburg says that he could have performed the essential functions of his job by virtue of a waiver, and that in any event, his disability should have been accommodated by allowing him a leave of absence to get one.

The problem is that DOT vision regulations were adopted for public safety. The version in effect in November 1992, when Kirkingburg failed to get certified, had been on the books since 1970. Although numerous studies had been conducted to determine whether vision requirements for monocular drivers could safely be changed, the FHWA found no sufficient basis for doing so as recently as July 16, 1992. 2 See 57 Fed.Reg. 31458 (1992). That’s why the FHWA decided to conduct a study to gather empirical data on monocular drivers, and to grant waivers on a limited basis to a,n experimental group. See Id. Even so, the FHWA had not determined that the existing regulations could safely be waived albeit experimentally for monocular drivers. That is why the D.C. Circuit held that the waiver program itself was invalid; the agency had not made the required finding that a waiver was “consistent with the safe operation of commercial motor vehicles” as required by statute. Advocates for Highway and Auto Safety v. Federal Highway Admin., 28 F.3d 1288, 1289 (D.C.Cir.1994).

Neither Kirkingburg nor the majority explains why the ADA should force Albertson’s to assume the risk of waiving vision requirements that the FHWA itself had not found could be safely waived. Instead, the majority says that because the FHWA determined in 1991 that the vision study was safe enough to continue, Albertson’s cannot say that in 1992 its requirement of complying with the vision regulations and rejecting a waiver was justified on account of safety. But the syllogism is flawed:

1. The majority starts with the premise that the dispositive question is “whether Al-bertson’s job-related requirement that Kirk-ingburg fails to meet is lawful as applied.” Whatever this means in the context of the ADA (where the real question is whether the employee is a “qualified individual with a disability who, with or without accommodation, can perform the essential functions of the employment position,” 42 U.S.C. § 12111 (8)), it cannot be the case that requiring compliance with DOT safety regulations is unlawful. Nor can it become unlawful “as applied” when the alternative is a waiver available only to an experimental group of drivers in a study that no one had found was consistent with the safe operation of commercial motor vehicles.

2. Next, the majority asserts that Albert-son’s has not “simply conformed its job requirements to the relevant DOT regulations; rather, it has chosen to adhere to only a part ■ of the. regulations, while ignoring the waiver program.” However, Albertson’s did not pick and choose regulations: the regulations hadn’t changed in November of 1992 (and still haven’t). It conformed its conduct precisely to the regulations in effect. The vision study waiver program was not part of the regulations, nor was it “a portion of the federal scheme” to prevent discrimination that Albertson’s impermissibly rejected, as the majority suggests. Rather, the vision study waiver program was part of the FHWA’s “efforts to review, and to eventually amend, its vision requirements through a rulemaking action.” 57 Fed.Reg. 31458, 31458 (1992). As the agency explained,

Id. In short, the vision waiver study was not a rule or a regulation with the force of law. It was a test, and an invalid test at that (as the D.C. Circuit held), for no determination had been made that waiving the vision requirements would not adversely affect the safe operation of commercial vehicles.

3. Next, the majority says that the waiver program “has been adjudged a success by the FHWA.” Whether that’s so or. not, the determination referred to is the FHWA’s “Notice of Final Determination and change in research plan” issued November 17, 1994 — two years after Kirkingburg lost his job. 59 Fed.Reg. 59386, 59389 (1994). But it doesn’t matter what the FHWA now thinks about the safety of its waiver study program. Whatever it had learned as a result of two years worth of the experiment wasn’t known to Albertson’s in November 1992, or to the agency at the time the study was begun in July 1992. As Kirkingburg seeks damages for his November 1992 termination, not reinstatement, the 1994, post-Advocates determination is simply irrelevant.

4. Finally, having said that Albertson’s adhered to only part of the regulations because it ignored the waiver program, and that the waiver program is a success, the majority concludes that the waiver program “is a lawful and legitimate part of the DOT regulatory scheme” which Albertson’s cannot say was not safe. Thus it holds that Albert-son’s “cannot selectively adopt and reject federal safety regulations” in establishing its job-related prerequisites, and that its job requirement is invalid. But since the vision study waiver program never was (and still isn’t) a part of the regulations; and since it wasn’t a success at the time of Kirkingburg’s termination because it hadn’t gotten off the ground and wasn’t determined to be safe; and since it never was (and still isn’t) a part of any regulatory scheme, there is no basis for holding that Albertson’s job requirement is invalid. Nor is there any authority for estopping Albertson’s, which is a private employer with legal responsibility to the public for the safety of its commercial motor vehicle drivers, from asserting that it wasn’t required to accept a waiver, or that it wasn’t reasonable for it to decline to do so, on the grounds of safety. To me it is dispositive that at the time of Kirkingburg’s termination (and in this record), no one (including the FHWA) had determined that a waiver was safe.

For these reasons, I agree with the district court that Kirkingburg failed to show that he could perform the essential functions of his job because he did not meet the DOT visual requirements, and that the ADA does not require Albertson’s to accept an experimental waiver that the FHWA had not found consistent with the safe operation of commercial motor vehicles. Since Albertson’s offered to accommodate Kirkingburg’s disability by another job (which Kirkingburg rejected), it fulfilled its ADA obligations. I would, therefore, affirm.

. Kirkingburg contends that the essential function of his job was being certified by DOT, not being .in compliance with its regulations. However, there is no evidence that Albertson’s ever accepted a waiver or defined the essential function of driving its commercial vehicles as anything less than complying with DOT visual acuity standards.

. See Rauenhorst v. Department of Transp., 95 F.3d 715 (8th Cir.1996) (outlining histoiy).