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Can Fatigue Risk Be Regulated?

The commercial transport industry is subject to regulation 49 CFR 392.3, which aims to prevent an ill or fatigued driver from getting behind the wheel. However, the regulation didn't prevent the highly publicized crash that injured comedian Tracy Morgan and killed comedian James "Jimmy Mack" McNair in June 2014, when a fatigued Walmart truck driver did not brake appropriately in response to traffic, including Morgan's limo van, that had slowed for a construction zone.(1)

Jeffrey Kohler, Professor of Mining Engineering at Penn State and former Director of the Office of Mine Safety and Health Research at NIOSH, has asserted that, despite the necessity of regulations to establish "minimum standards of practice," "the broader structural elements of regulation and enforcement can limit the success of efforts to improve safety and health in unintended ways."(2) For instance, §392.3 has not had practical, preventative means of enforcement other than the driver's or management's own judgment. But judgment can be affected by the cognitive impairment that is symptomatic of fatigue. And managers may be more immediately concerned about meeting quotas, deadlines, or other measures of their own job performance, than whether a particular driver could be sleepy.

"The thousands of pages of regulations...serve to reinforce the dangerous misconception that compliance with the body of regulations will ensure good outcomes." – Jeffrey Kohler

"The thousands of pages of regulations...serve to reinforce the dangerous misconception that compliance with the body of regulations will ensure good outcomes." – Jeffrey Kohler

A regulatory perspective might assume that additional regulations may help to enforce and comply with § 392.3, to tighten up the "minimum standards of practice" and prevent the kinds of accident mentioned above. But Kohler asserts that regulations tend to be overly prescriptive, which increases the volume of specific regulatory content to be digested and understood by both organizations and the enforcement agencies, making both compliance and enforcement increasingly difficult. "The thousands of pages of regulations and related policy," he writes, "serve to reinforce the dangerous misconception that compliance with the body of regulations will ensure good outcomes,” when prescriptive regulations cannot foresee all possibilities. In addition, the development of new regulations can sometimes precede industries’ ability to meet them, Kohler argues, which “creates a ‘demand’ for research and technical solutions.” These can take time to develop and adopt, making compliance in the meantime a challenge.(2)

So, rather predictably, in the aftermath of the high-profile 2014 crash, the Federal Motor Carrier Safety Administration (FMCSA) reacted by seeking regulatory solutions to address driver fatigue, which included new logging mandates and restrictions to driving in the early morning hours. And unsurprisingly, bickering between regulators and displeased industry members followed. Meanwhile, innovators were innovating, consequent of the demand for solutions to meet new regulations and improve safety in practical ways, and this led to experimentation with some different fatigue management tools for drivers.

Does Zero-Tolerance Make Workplaces Safer?

Interestingly, a similar quandary has also arisen, as differing laws surrounding cannabis have complicated standard workplace drug testing and hiring practices. In one common example, employers have been unsure of how to proceed when an employee’s random drug test results are positive but the employee presents a physician’s recommendation for medical cannabis. Because cannabis remains illegal under Federal law, protections like Colorado’s “lawful activities statute,” which protects people from being terminated for engaging in lawful activities outside of work, do not apply. This was the crux of the decision in Coats v. Dish Network, a lawsuit filed by a quadriplegic employee after being fired from his position at Dish Network following a positive drug test despite his physician’s recommendation for medical cannabis.(3)

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Because of the Federal law, many employers, especially ones who work across state lines, are unwilling to engage with the complicated legal cannabis landscape, adhering to zero-tolerance policies for positive tests regardless of the drug detected and regardless of medical need. Although drug testing’s inability to determine impairment from cannabis is becoming more widely recognized, many companies find that keeping the status quo, a no-tolerance policy, is an easier path to tread.(3) But little evidence suggests that this easier path helps create and maintain a safe workplace. At best, it is intended to protect company reputation(4,5) and does little to prevent an impaired worker, largely because fatigue, not substance use, is a much more common factor in workplace incidents.(6)

Some important issues arise from zero-tolerance policies. For one, zero tolerance policies put cannabis, a “soft” drug with known valid medical applications, in the same basket as lethal drugs like crystal meth or heroin, when cannabis shares few qualities, if any, with these other substances. And many such policies do not put tobacco or alcohol in the basket at all—not because they aren’t harmful substances, but only because they are not illegal at the Federal level.

Compounding this, other legally available substances that could affect alertness are not always monitored in a zero-tolerance policy nor considered in drug screens, like over-the-counter medicines. For example, someone who takes a nightly sedative to battle insomnia would not be terminated after a drug test, while someone who uses marijuana for the same reason would be terminated, despite neither person being impaired while at work.(3) This ignores how different drugs are metabolized; cannabis can be detected in body fluids days after consumption despite its psychoactive effects having long faded away.

It seems that “zero tolerance” policies are tolerant of quite a lot but unduly target cannabis use, irrespective of any effect its use outside of work hours may have on workplace safety. Obviously, zero-tolerance policies are designed entirely to benefit the company; little to nothing suggests they do anything to benefit employees.

A New Perspective

But some employers in states with legal cannabis have begun to see the value in moving away from a zero-tolerance standard to one that considers impairment and performance first, avoiding a problematic situation like that which led to Coats v. Dish Network. These employers have begun to recognize that drug testing policies may dissuade some valuable and qualified candidates from seeking their employment, as well as do little to improve day-to-day safety at their workplaces.(4) More companies are becoming wise to the need for a different approach to preventing safety lapses from cognitive impairment, understanding that zero tolerance is merely a kind of willful ignorance that may actually work against them in today’s employment landscape.

The notion that safety can be improved by reducing drug use is being replaced by the notion that safety can be improved by reducing impairment. This is especially true because drug screens cannot and do not account for all possible substances that can cause impairment, even legal OTC and prescription medications. Plus, it is no secret that cognitive impairment comes from other causes like fatigue, illness, aging-related dementia, and preoccupation. But these things are not commonly monitored by workplace safety systems because, unlike drug use, they are not taboo or illegal.

Mature and modern safety systems recognize two things: first, that monitoring and measuring employee alertness is a practical and effective solution to preventing safety risk from an impaired worker; and second, that fatigue is a more common risk factor than virtually all other causes of impairment and deserves to be prioritized. Fatigue management technologies seek to supersede the need for human judgment by providing a subjective measure of individual fatigue for both workers and their management. They allow a worker to understand his or her fatigue risk as well as allow management know when a worker may be fatigued and violating regulations like §392.3, where they exist. (Many industries have no regulations like §392.3, which means organizations commonly have no consideration for fatigue risk in their safety systems whatsoever because safety performance is erroneously measured in terms of regulatory compliance alone.)

Impairment comes from causes like fatigue, illness, dementia, and preoccupation. But these things are often not monitored because, unlike drugs, they are not taboo or illegal.

Organizations seeking optimal safe human performance have recognized the need for innovations that transcend reliance on human judgment—which is sometimes less than optimal—and that are aimed appropriately at detecting what needs to be detected, which is alertness and cognitive acuity. An alertness testing tool like Predictive Safety’s AlertMeter can help fill the gaps in fitness-for-work assurance left by flawed traditional methods. In shiftwork-specific environments, Predictive Safety’s PRISM fatigue management system adds additional sophisticated layers of real-time bio-mathematical fatigue risk assessment without the need for invasive, cumbersome wearable devices, allowing for more intelligent shift and task scheduling to help protect workers’ health and safety, even for their commute home.

The human elements of an organization are its most valuable assets. Safety systems designed to protect these assets by preventative means—rather than systems that only react to violations and punish risky behavior—are realistic and achievable for organizations of any size or level of organizational maturity. Although keeping the status quo might be considered the easier path, signs of the times point to adaptation, modernization, and organizational maturity as the better, more lucrative, and more reputable path, leading to sustainable improved worker safety, reduced risk, and enhanced performance.

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