The Trucking Law segment is a monthly feature on Overdrive, in which we pose commonly asked questions from truckers and owner-operators to legal experts. In this installment, attorney Paul Taylor goes into truckers’ rights when they are too sick to drive. Find all Trucking Law installments via this link.
I often get driver questions about their rights when they become too sick to drive.
Federal safety code is quite clear. 49 C.F.R. § 392.3 states: “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.”
A commercial driver is protected only if the illness or state of fatigue is severe enough that it jeopardizes safety. A minor sniffle is unlikely to be considered handicapping, but many other afflictions can affect your ability to drive. In such a case, you have the right – actually the obligation, under a strict reading of the law – to refuse a job assignment until you’re able to proceed safely.
With the heightened concern over spreading COVID-19, you might prefer not to drive as a safety measure for the general public. Disease prevention, though, is not covered by federal code as a legal reason to refuse to drive.
Should you be fired or penalized for rightfully refusing to drive, there are legal recourses. The most common is the Surface Transportation Assistance Act, which offers protection from such retaliation.
The U.S. Department of Labor, which enforces STAA, has issued decisions favoring drivers in these cases. For a driver to prevail, three things must be proven:
- That sufficient impairment existed or was likely to develop into a problem.
- That the employer knew the basis of the driver’s refusal to drive.
- That the refusal to drive was a contributing factor in the retaliation.
Communication is the key to protecting yourself. Regardless of how long you have been off duty, you still could be too impaired to drive safely, and you should explain this to your dispatcher. Apart from sickness, it could be a circumstance as simple as having waited all day to be dispatched, and you now need a full night’s sleep.
In other cases, you might need to tell the dispatcher that you’ve worked 10 straight days, you’re wiped out, and you won’t be safe if you jump behind the wheel. If you’re refusing to drive due to illness, explain the nature of your symptoms, such as, “I have a high temperature. I feel very weak and as if I am going to throw up.”
Simply telling your dispatcher “I’m sick” or “I’m tired” may not be sufficient for STAA protections. As for normal fatigue, you have an obligation to attempt to obtain adequate rest if possible, or the law will not protect you from retaliation.
It’s advisable to document your refusal to drive in violation of the law, with an explanation of why you are refusing, through your in-cab device, text messages or email. When possible, communicate your refusal not only to your dispatcher but also to the dispatcher’s manager and the company safety department. Take screenshots of your messages to protect yourself if you are disciplined illegally.
Impaired driving causes thousands of accidents every year, many of them fatal. Don’t take lightly your responsibility to refrain from needlessly putting yourself and others at risk.