President Obama yesterday signed a bill saying that any changes in federal requirements for handling truck driver sleep disorders, such as sleep apnea, must come through the rulemaking process, rather than guidance to medical examiners.
There are big differences between the two approaches.
The Federal Motor Carrier Safety Administration traditionally has relied on guidance to make sure that examiners can spot drivers who may have a sleep disorder.
Over the past several years the agency has been working on a more robust guidance that reflects the better understanding of sleep disorders, and obstructive sleep apnea in particular, that doctors and medical researchers have developed.
That information is available to examiners and carriers on the FMCSA web site, but it will not be added to the longstanding formal guidance the agency has for examiners.
It will no doubt be included in any rulemaking, but before the agency can go there it must research a much broader range of issues.
Rulemakings must include a cost-benefit analysis.
According to Sean Garney, manager of safety policy at American Trucking Associations, this will require the agency to estimate the number of drivers who would be affected by the rule, the percentage of crashes in which sleep apnea is a factor and the percentage that would be affected by treatment of apnea.
Also, the agency will have to look at the costs and effectiveness of testing and treatment, as well as the “discouragement factor” – the extent to which a rule would discourage drivers from coming into the industry, or staying in it, Garney said.
“There’s just a lot that they’re going to have to study in order to understand the real impacts on the industry,” he said.
ATA estimates that a sleep apnea rule will cost the industry more than $1 billion a year, which is one reason why it pushed Congress to pass the bill that’s now on Obama’s desk.
The other reason is that trucking managers want a clear message from the government about their handling of sleep apnea.
“Carriers need a rule so their risks are spelled out in legal terms,” Garney said.
There’s a flip side to that issue, though, said Garney and others.
Carriers face the risk of violating employment laws if their apnea screening is inadequate.
For carriers that do not have an in-house screening program, the best option is to rely on the physician who conducts the driver’s medical evaluation, said Ted Perryman, a St. Louis, Mo., attorney who specializes in defending trucking companies in law suits.
“Tell the physician or whoever does the exam that you want sleep apnea screening for everyone you send through,” Perryman said.
That approach reduces the risk of violations of the Americans with Disabilities Act or equal employment opportunity rules, if the carrier does the screening itself, he said.
“That’s why it would be helpful to have an actual rule, so you can say I have to screen, I don’t have a choice,” he said.
There’s the additional possibility that in the wake of a crash, plaintiff attorneys will test a carrier against the information on sleep apnea the agency gathered in preparation for the revised guidance, Perryman said.
“In the right case, someone is going to make the argument that if the motor carrier did not have a screening process, they should have,” he said.
His advice: “Any motor carrier would be well advised to have some kind of screening program, whether they do it in-house or make sure that whoever is doing their DOT physicals screens for it.”
Jeffrey Burns, a Kansas City, Mo., attorney specializing in plaintiff suits against trucking companies involved in fatal crashes, said smaller carriers with fewer resources still can protect themselves.
“Medical examiners still have the obligation to determine if a driver can work safely,” he said. “But the fact that a company doesn’t have a thousand trucks doesn’t mean they can have a sleep apnea screening program. It’s not that tough to identify.”
He noted that apnea is not merely a safety issue related to daytime drowsiness due to lack of rest.
“It’s a driver health and wellness issue,” he said. Treatment doesn’t just reduce fatigue-related crashes, it promotes health, reduces worker compensation costs and improves morale, he said.
For its part FMCSA has said only that it will issue a notice to address sleep apnea through a rulemaking “after collecting and analyzing the necessary data and research.”
The agency has not said when it expects to post a proposal.