PORTLAND, Ore. — A much-anticipated regulation that will require carriers operating in the US to screen commercial drivers for sleep apnea could still be a year away.

Waiting for the law to be passed, however, is increasingly risky for motor carriers based on a number of recent court judgments. That was the assertion of Angela Cash, partner with US law firm Scopelitis, Garvin, Light, Hanson & Feary, when speaking during a recent Webinar on legal issues facing motor carriers, hosted by HR and compliance software provider Compli.

“We don’t have a regulation yet, but the case law that’s developing out there is already putting the liability on motor carriers even without a regulation from the FMCSA that would require companies to screen for obstructive sleep apnea,” Cash said.

Recent court cases involving commercial vehicle accidents that may have been related to fatigue have relied heavily on expert testimony, Cash pointed out. In one case a truck driver who was involved in an accident and then died of his injuries two weeks later was determined to have sleep apnea without ever having been diagnosed, based solely on the opinion of an expert who came to his conclusion based largely on the driver’s physical attributes.

Cash suggested there’s enough information currently available about sleep apnea and its risks that carriers are taking a chance by ignoring the issue.

“I think the tide is turning,” she said. “It’s not a situation where you can say ‘We don’t have a program,’ and those without a program are getting a free pass. There’s enough out there in terms of studies, data, expert testimony regarding the trucking industry and sleep apnea that a pretty persuasive case can be made to show your driver was a risk – a time bomb, if you will – behind the wheel.”

Launching a screening program for drivers is a good start, Cash suggested, but follow-through is equally important.

“Plaintiff councils love for motor carriers to put policies in place and then not follow them,” she warned. “If you have a program, make sure you cover the whole thing and that you’re not just identifying the drivers who might be at risk at the outset. But also, what are you doing to get them help, what are you requiring them to do in terms of treatment and what are you doing in terms of monitoring that treatment?”
Carriers also should be following up on minor crashes and driver complaints of fatigue to ensure they’re not indicative of an underlying medical issue such as obstructive sleep apnea.

One of the risks for carriers without a sleep apnea program is that many drivers who suffer from the condition are fairly easy to identify. It’s been well publicized that obesity, a thick neck, smoking and alcohol consumption are often prevalent among sleep apnea sufferers, meaning an expert witness or jury could draw their own conclusions based on a driver’s appearance.

“If you start looking at the picture of that driver it becomes very clear there’s an increased risk of sleep apnea,” Cash pointed out. “If that driver is involved in an accident where it appears sleep behind the wheel may have been an issue, all those factors are going to come out. The plaintiff council will say ‘I can see it, why couldn’t you see it motor carrier? You were there all along’.”

Only 18% of the fleets represented on the Webinar indicated in a poll that they currently screen drivers for sleep apnea. A US notice of proposed rulemaking could be forthcoming later this year, but Cash warned “There’s lots of information out there that motor carriers need to be looking at and asking themselves what they can do even before the regulations come into place.”

Sleep apnea was just one of several liability issues facing motor carriers that were discussed during the Webinar. Compli posts archives of its Webinars online at www.compli.com.