New Hearing-Impaired Driver Exemptions

By Jim Mulroy

JIM MULROY

The U.S. Department of Labor reports that there will be a 21 percent increase in the job growth for truck drivers over the next 10 years. Currently, more than 20,000 truck driver positions nationwide go unfilled.

The driver shortage will become more serious because of the aging of the driver population. Retirement coupled with age-related diseases such as diabetes, obesity, high blood pressure and sleep apnea will cause a significant shortfall in driver availability. The American Trucking Association projects that by 2022 there will be a shortage of 239,000 truck drivers.

On Feb. 1, the Federal Motor Carrier Safety Administration for the first time in 40 years granted an exemption to the “forced whisper test.” This test precluded moderately to profoundly deaf individuals from commercial driving. To pass the test, an individual must be able to perceive a forced whisper at 5 feet with or without the use of a hearing aid.

The Federal Motor Carrier Safety Administration’s “Notice of Final Disposition” granted a request for exemption to 40 hearing impaired drivers. The FMSCA may grant an exemption if the exemption would likely achieve a level of safety that is equivalent to the level that would be achieved without the exemption.

The administration cited the following factors in making a determination that these drivers should be granted an exemption for a period of two years:

• A National Association of the Deaf study finding that communication in trucking is no longer dependent on hearing loss since drivers now rely on “smartphone technology.”

• Deaf drivers face fewer distractions at the wheel (based on interviews with individuals who are deaf.)

• There have been no studies correlating hearing loss and commercial vehicle accidents.

• The studies that have been done on private motor vehicle drivers do not support that deaf drivers are at increased risk.

The opinion states that scenarios could be conceived where deafness could lead to potential unwanted consequences, for example bus drivers. However, this was not the case with the drivers applying for the exemption.

The agency stated the exemption would pre-empt state laws and regulations.

Although the agency limited the exemption to include only the 40 applicants, it announced an intention to begin the rule-making process to address the issue. The EEOC, the Deaf Truck Drivers United and the National Association for the Deaf supported the decision.

The decision highlights some practical issues to consider:

In highly regulated industries, there may be regulations that override the Americans with Disabilities Act. In this case, Department of Transportation regulations concerning the qualifications of commercial truck drivers took precedence over the ADA including the interactive process.

A private or commercial trucker must be aware of the exemption procedures in the FMSCA regulations. Notably, both employer and employee may participate in this process.

In view of driver shortages, be sensitive to the changes in driver qualification requirements and programs designed to return drivers to the road in view of the continued driver shortage.

Jim Mulroy is the managing partner of Jackson Lewis’ Memphis office.