A carrier is required by 391.45(g) to send a driver for a medical exam by a certified medical examiner (CME) if any driver's ability to perform their duties has been impaired by a physical or mental injury or disease.

There are often concerns when contemplating sending a driver for a medical exam well before their medical card is about to expire. The greatest concerns often relate to violating a medical privacy law such as the Americans with Disabilities Act (ADA) or the Health Insurance Portability and Accountability Act (HIPAA).

However, as a carrier safety representative responsible for drivers regulated by the Federal Motor Carrier Safety Administration (FMCSA), you must require a medical exam under 391.45(g) if there if the driver may have a condition or injury that makes them unsafe.

You can also make medical inquiries with the driver if you have a reasonable belief, based on objective evidence, that the driver is unable to operate a CMV safely because of a potential medical condition. Per FMCSA, DOT medical examination regulatory requirements take precedence over HIPAA.

The answers for numbers 2 and 3 in bold are the most correct answers.

1. Make sure the coffee in the break room is stronger. Discussion: While it may be appreciated, this would not likely solve the safety concerns.
2. Ask the driver about their general alertness and if they had any incidents of nodding off or difficulty concentrating while driving based on patterns in telematics data (lane departure warnings, hard braking events, etc.). Discussion: If you are using objective data and have identified a specific risk regarding the driver's ability to operate a CMV safely, you must address the safety concerns and the possibility that the driver may need a medical exam by a certified medical examiner.
3. Based on your conversation in number 2 above and your observations, explain your safety concerns to the driver and send them for a medical exam by a certified medical examiner. Discussion: If you use objective data in your discussion with the driver and there is a specific risk regarding the driver's ability to operate a CMV safely, you must send the driver for a medical exam by a certified medical examiner (391.45(g). The exam may, but is not required to, result in the CME recommending that the driver undergo a sleep study and treatment. The final certification decision is up to the CME's discretion. To minimize risk of claims of negligent supervision and an excessive verdict if there is any question as to the ability of the driver to operate safely, send the driver for a medical exam.
4. You tried number 3 above, but felt bad when the driver told you they have to do a sleep study and cannot drive. Send the driver to another certified medical examiner for a second opinion to see if they can get qualified without a sleep evaluation. Allow them to keep driving until the second examiner has a chance to conduct a medical exam in two weeks. Discussion: While a second opinion by a different CME is allowed, such an exam would greatly increase potential risk, especially if the driver is not honest about their medical history. Allowing a driver to operate your CMV after being qualifed by the second examiner without a sleep evaluation (as recommended by the first examiner), given your observations of fatigue, could be deemed negligent supervision if there is post-crash litigation. Allowing a driver to operate a CMV while fatigued and unsafe or likely to become unsafe also violates section 392.3.