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14 able in its terms for reinstatement."87 Finally, the court vision and hearing requirements. The regulation also held that given the employee's record, the terms of rein- provides for alternative physical qualification standards statement were reasonable, so the reinstatement award for individuals with loss or impairment of limbs based did not violate public policy. on a skill performance evaluation.94 In addition, under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an B. Commercial Driver's License/Medical exemption for a 2-year period if it finds such exemption Requirements "would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved 1. Federal Requirements absent such exemption." The FMCSA grants exemp- tions to its requirements for vision, diabetes, and epi- The general provisions of the Federal Motor Carrier lepsy. The 2005 transit reauthorization legislation con- Safety Regulations (FMCSRs) specifically exempt tained a provision prohibiting both applying higher transportation performed by the federal government, a physical standards for insulin-treated people than other state, or any political subdivision of a state from the applicants, except as medically necessary under regulations.88 However, this exemption does not apply to FMCSA regulations, and requiring insulin-treated ap- the CDL requirements in Part 383.89 Moreover, the CDL plicants for an exemption to have experience operating requirements are not limited to drivers in interstate 90 CMVs while using insulin, although such applicants commerce. Rather, the requirements apply to any must demonstrate stable control of their diabetes before driver who operates a commercial vehicle, whether in operating a CMV in interstate commerce.95 The Gov- interstate or intrastate operation, providing they drive ernment Accountability Office recently critiqued the on a public road. Accordingly, the CDL requirements do medical certification process, finding some evidence of not apply to transit hostlers (public transit employees fraud or medical examiners not familiar with medical who maintain and park transit buses on transit system 96 fitness requirements. property) unless they drive vehicles on public roads.91 In The FMCSRs do not require an examination when a addition, Section 33 of the FTA Master Agreement re- driver returns from injury or illness unless the injury or quires recipients of FTA funding to comply with illness has impaired the driver's ability to perform his FMCSA's CDL standards. or her normal duties, although the motor carrier may The government exemption noted above does cover require a driver returning from any illness or injury to the driver qualification requirements, including medical 92 take a physical examination. But, in either case, the requirements, of 49 C.F.R. Part 391. Moreover, Part motor carrier has the obligation to determine if an in- 391 only applies to drivers of CMVs in interstate com- jury or illness renders the driver medically unquali- merce, although many states adopt these requirements fied.97 This obligation can be fulfilled while still meeting for their own CDLs.93 requirements of the ADA, infra. FMCSA's medical The physical qualifications provisions of Part 391 set board has recommended obstructive sleep apnea screen- forth disqualifying physical conditions and establish ing, but this requirement has not yet been adopted.98 87 Sw. Ohio Reg'l Transit Auth. v. Amalgamated Transit Un- 2. State Requirements ion, Local 627, 91 Ohio St. 3d 108, 115, 742 N.E.2d 630, 636 (2001). State requirements for CDL waivers for intrastate 88 49 C.F.R. 390.3(f)(2). drivers may be less rigorous than the federal waiver 89 requirements.99 Otherwise, state CDL standards gener- Question 10, www.fmcsa.dot.gov/rules-regulations/ administration/fmcsr/fmcsrruletext.aspx?chunkKey= ally mirror those of the FMCSA, including medical re- 090163348002325f. 94 90 49 U.S.C. 383.3. Skill Performance Evaluation (SPE), 91 www.fmcsa.dot.gov/rules-regulations/topics/medical/ Question 15, www.fmcsa.dot.gov/rules-regulations/ spepackage.htm. administration/fmcsr/fmcsrruletext.aspx?chunkKey= 95 0901633480023236. 109 Pub. L. No. 59, 119 Stat. 1742, 4129, Operation of 92 commercial motor vehicles by individuals who use insulin to Part 391: Qualifications of drivers and longer combination treat diabetes mellitus, Aug. 10, 2005. vehicle (LCV) driver instructors, www.fmcsa.dot.gov/rules- 96 regulations/administration/fmcsr/ U.S. GOVERNMENT ACCOUNTABILITY OFFICE, fmcsrguidedetails.aspx?menukey=391. Medical requirements COMMERCIAL DRIVERS: CERTIFICATION PROCESS FOR DRIVERS are in 49 C.F.R. 391.41, www.fmcsa.dot.gov/rules- WITH SERIOUS MEDICAL CONDITIONS 10 (2008), regulations/administration/medical.htm. See FMCSA Medical www.gao.gov/new.items/d08826.pdf. 97 Programs, www.fmcsa.dot.gov/rules-regulations/topics/medical Interpretation for Part 391.45: Qualifications of drivers medical.htm. See also ICF INTERNATIONAL, supra note 56, at and LCV driver instructors, www.fmcsa.dot.gov/rules-regula 34. tions/administration/fmcsr/fmcsrruletext.aspx?chunkKey=0901 93 For example, in responding to the report questionnaire, 633480023273. 98 Alabama, Idaho, Indiana, Iowa, Louisiana, Maryland, Minne- www.mrb.fmcsa.dot.gov/documents/FINALJul109_ sota, Nevada, and New Jersey indicated that transit employees MRB_Meet_Sum_101409.pdf. 99 [either specifically or as part of larger group that could be ex- E.g., [Oregon] CDL Medical Examination & Physical pected to include transit employees] must meet the require- Qualifications, ments of 49 C.F.R. 391.41. www.oregon.gov/ODOT/DMV/driverid/cdlmedex.shtml.