apnea concerns. Fleets, already fearful they’ll be sued, must respond to physicians’ fears of litigation as well. One of Saunders’ major carrier clients in Houston recently started a sleep apnea program because of its fears of litigation. In addition to improv- ing safety, fleets are trying to show poten- tial judges and juries they have made a “good faith effort” to prevent sleep apnea in case an accident occurs. “It does not stop a plaintiff attorney
from suing a carrier because they ran a driver through a sleep study and a fatality still occurred,” Saunders said. “Their hope is it will minimize the litigation or the impact of the claim so that if it does ever go to court, the jury can side and say, ‘You know, I hear what you’re saying, this family was killed and that’s very unfortunate, but I’m not sure what else this fleet could have done to prevent the accident.’” The trend, Saunders said, is for carri-
ers to base their programs on what their competitors are doing. “If I’m not building a co-op or uniformity program by which I’m hiring under the same standard that the other fleet I’m competing with is, then that driver has the perception that I’ve relaxed the rule, that my policies are not as stringent as the other carriers,” he said. “Therefore you can come over here with any problems, and we can hire you. That’s a false perception, by the way.” Saunders said that the litigation envi-
ronment puts carriers in a bit of a catch-22. They’re trying to ensure they avoid a sleep apnea lawsuit, but there’s no absolute defi- nition of the condition of sleep apnea. Instead, they have a list of risk factors, including obesity. But if carriers don’t hire a driver based on obesity, they face an Americans with Disabilities Act lawsuit for employment discrimination. John D. Esparza, president and CEO
of Texas Trucking Association (TXTA), said TXTA will be sharing its concerns with the Texas congressional delegation. “I think it’s important that we all
agree on what we should see,” he said. “Not a patchwork system, but what should be uniform throughout at least the lower 48, so we know that as we’re traveling, the risk isn’t different in one state or greater in one state than the other.”
ABSENT CLEAR DIRECTION, MEDICAL EXAMINERS ARE LEFT TO MAKE JUDGMENT CALLS BASED ON RISK
FACTORS SUCH AS BODY MASS INDEX, NECK SIZE AND A DRIVER’S VOLUNTARY COMMENTS. WHEN IN DOUBT, THEY OFTEN DECIDE TO PLAY IT SAFE RATHER THAN RISK A LAWSUIT IN CASE THERE IS A CRASH.
Complicating the matter is that it
seems the FMCSA’s priorities have shifted. It’s the Federal Motor Carrier SAFETY Administration, but according to ATA’s Abbott, it’s lately been paying more atten- tion to raising minimum insurance limits and driver compensation for detention time. Eight years ago, ATA filed a petition for a speed limiter rulemaking – speed being, after all, the biggest contributor to crashes – but FMCSA hasn’t acted. “These all appear to be politically
motivated and consistent with the adminis- tration’s overarching economic agenda but don’t appear to be driven by the primary causes of truck crashes,” Abbott said.
Hours-of-service In other sleep-related news, the indus-
try breathed a collective sigh of relief late last year when Congress included a suspen- sion of the controversial restart provision in its funding bill. On December 13, Congress passed the
fiscal year 2015 Omnibus Appropriations bill, providing funding for the vast majori- ty of the federal government, including the Department of Transportation, for the cur- rent fiscal year. The legislation suspends the require-
ment that restarts contain two consecutive periods of time between 1 a.m. and 5 a.m., and that it can only be used once every 168 hours (or seven days). In other words, the restart rule reverts back to the simple 34-hour restart in effect from 2003 to June 2013.
Because the language resides in an
annual spending bill, its terms expire at the end of FY2015, which is September 30,
2015. It’s important to note that the legisla- tion also directs the Department of Transportation to conduct a study compar- ing the effectiveness of the 34-hour restart rules in place before July 1, 2013 with those that took effect after. FMCSA released a study last March
saying the restart rule that was just sus- pended was having a positive effect on safe- ty. Researchers compared a total of 106 drivers with two or more nighttime rest periods and said those operating under the new rules had fewer lapses of attention, especially at night; reported less sleepiness, especially toward the end of their duty periods and deviated less from their lanes. FMCSA believes the rule will prevent about 1,400 crashes, save 19 lives, and prevent 560 injuries each year. But ATA’s American Transportation
Research Institute (ATRI) believes the restart provision reduced driver restedness. In a study released last year, ATRI said more than 66 percent of the drivers it sur- veyed said the rules had increased fatigue, and 82.5 percent said the rules negatively had affected their quality of life. Drivers said they were being required to drive more during congested time periods and saw a pay decrease. More than 80 percent of motor carriers surveyed saw a productivity loss under the rules, with almost half say- ing they needed more drivers to haul the same amount of freight. Garney does see a ray of hope on this
issue. “The unintended consequences of the old 34-hour restart are clear, and I think the broad support in Congress indicates that,” Garney said.
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