Federal Motor Carrier Safety Administration
393.2 Ill or fatigued operator
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. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.[35 FR 7800, May 21, 1970, as amended at 60 FR 38746, July 28, 1995]
Question 1: What protection is afforded a driver for refusing to violate the Federal Motor Carrier Safety Regulations (FMCSRs)?
Guidance: Section 405 of the Surface Transportation Assistance Act of 1982 (STAA) (49 U.S.C. 31105) states, in part, that no person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee’s compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rule, regulation, standard, or order applicable to Commercial Motor Vehicle (CMV) safety. In such a case, a driver may submit a signed complaint to the Occupational Safety and Health Administration.
PORTLAND, Ore. – The U.S. Department of Labor's Occupational Safety and Health Administration ordered Oak Harbor Freight Lines Inc. to compensate a worker who refused to drive in violation of safety regulations. OSHA has also ordered the trucking company, based in Auburn, Wash., to stop retaliating against workers who refuse to drive trucks while too ill or fatigued to safely operate vehicles at its facilities.
"Punishing workers for exercising their right to refuse driving assignments is against the law," said David L. Mahlum, OSHA's acting regional administrator in Seattle. "A company cannot place its attendance policies ahead of the safety of its drivers and that of the public."
OSHA determined that the attendance policy of Oak Harbor Freight Lines punishes drivers by issuing them notices of "occurrences," which can result in disciplinary action or termination for failing to drive, regardless of possible safety concerns. OSHA is requiring the employer to compensate the employee for lost wages and has ordered the company to remove any occurrences from the driver's personnel file. The employer will also be required to post a notice for drivers to read and learn about their lawful rights under the STAA.