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Commercial Driver Repeatedly Too Ill to Drive Protected from Discipline

Every operator of a commercial motor vehicle has a federal right to refuse to drive if the person's condition
(through fatigue, illness or other cause) is likely to make it unsafe to operate the vehicle.

Commercial Driver Repeatedly Too Ill to Drive Protected from Discipline

Federal law may bar an employer from disciplining an employee-truck driver whose pattern of becoming too "ill" to work also happened to produce a series of extended weekends and holidays for himself. (Sysco Food Services v. Asst. Secretary of Labor, 3d Cir.).

Under the Surface Transportation Assistance Act, an employer may not discharge, discipline or discriminate against an employee because the employee refuses to operate a motor vehicle, if such operation would violate a federal commercial motor vehicle safety regulation or standard. Federal motor carrier safety regulations state in part:

"No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle."

An aggrieved employee may file an administrative complaint with the U.S. Department of Labor. If a violation is established, the employer may be ordered to abate the violation, reinstate the employee, pay damages (including back pay) and pay the employee's attorneys' fees.

In the above case, the driver claimed illnesses which produced 2 two-day weekends, 3 four-day weekends and 2 five-day weekend holidays - - all in a twelve month period. When disciplined pursuant to the company's progressive disciplinary policy contained in the collective bargaining agreement, the driver filed a complaint with the Labor Department. The agency ruled for the driver at the administrative level.

On judicial review, the court of appeals observed that the driver's record provided reasonable grounds to suspect that his absences "were caused not so much by illness as repeated opportunities for mini-vacations." Nevertheless, the court accepted the facts as determined in the administrative process, while noting that the justices might have reached a different conclusion had they been the fact-finders.

 

Keeley, Kuenn & Reid, a Chicago based law firm with government relations affiliates in Washington, D.C., is engaged in the practice of business law, commercial litigation, employment law, taxation, antitrust, product liability, estate planning and legislative matters. Through its affiliates, the firm also meets its clients' needs in protecting intellectual property rights and international commercial law matters.

Keeley, Kuenn & Reid 150 North Wacker Drive Chicago, IL 60606 Tel. No. (312) 782-1829 Fax. No. (312) 782-4868 Web: http://www.kkrlaw.com