NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up to date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.

[Nuclear & Environmental Digest II B 2]
JURISDICTION; UNDERLYING COMPLAINT

In McNeal v. The Foley Co., 98-ERA-5 and 14 (ALJ July 7, 1998), the ALJ considered whether Complainant's complaints concerned violations of environmental requirements or complaints about violations of occupational safety and health requirements. He found that the safety complaints raised by Complainant were related to occupational safety: absence of guardrails on elevated working surfaces, exposed rebar without caps, work site cluttered with debris, inadequate fall protection for workers, many damaged harnesses and lanyards and no harnesses at all for some of the workers, scaffolding not up to code, no toe boards and faulty equipment, tag lines not used during crane operation, exposed ditches, no warning whistles before explosions were carried out, a need for more ropes for tag lines and for carrying loads up ladders and for more wood for hand railings, use of jack hammers without toe guards, face shields, ear plugs and respiratory protection, failure to tie off when jack hammering was done on elevated work surfaces and no shoring when jack hammering alone in a confined space, and failure to put plywood cut offs on top of rebar mat to create a safe walkway over the mat.

The ALJ concluded that the only concern submitted by Complainant which arguably might be able to come within the realm of the ERA, was her concern about the quality of the concrete, but found that Complainant had failed to present evidence regarding whether or not these concrete quality concerns would implicate nuclear safety or the fact that Complainant reasonably believed that the concrete quality presented a nuclear or nuclear-related safety hazard.

[Nuclear & Environmental Digest VII E]
SEALING OF RECORD IN REGARD TO MEDICAL RECORDS

In Marcus v. U.S. Environmental Protection Agency, 1996-CAA-3 and 7 (ALJ Dec. 15, 1998), the ALJ granted Complainant's request that testimony from the medical experts and any medical records submitted as exhibits be placed in a restricted access portion of the case file pursuant to 29 C.F.R. § 18.56 and Brown v. Holmes & Narver, Inc., 1990-ERA-26 (Sec'y May 11, 1994). The ALJ placed the relevant exhibits and transcripts in sealed envelopes. She also discussed the restricted access information in a sealed, unpublished addendum to the recommended decision.

[Nuclear & Environmental Digest IX D 3]
MOTION TO REOPEN FILED WITH ALJ OTHER THAN PRESIDING JUDGE

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1, 94-CAA-2 and 3 (ALJ Dec. 28, 1998), Complainant filed motions to reopen and supplement the record in several whistleblower complaints originally presided over by other, now retired ALJs. The ALJ with whom Complainant filed the motions had presided over an ERA complaint filed by Complainant, but the instant motions appeared only to relate to the other complaints.

The ALJ denied the motions because (1) the complaints had been dismissed by the 6th Circuit in Varnadore v. Secretary of Labor, 141 F.3d 625 (6th Cir. 1998), and there had been no further appeal or remand, and (2) he had no jurisdiction over the complaints that were the subject of the motions.

[Nuclear & Environmental Digest IX D 3]
RECONSIDERATION; ARB'S AUTHORITY

Noting that the ERA does not address the issue of reconsideration of final orders in the whistleblower protection cases within the Secretary of Labor's jurisdiction, and reviewing relevant caselaw, the ARB held that unless reconsideration by the ARB would interfere with, delay or otherwise adversely affect accomplishment of the Act's safety purposes and goals, it has inherent authority to reconsider a final ERA order. Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Nov. 20, 1998). The ARB noted in its discussion, however, that an agency never has authority to reconsider the wisdom of its final order merely because of a change in agency policy, citing American Trucking Ass'n v. Frisco Transp. Co., 358 U.S. 133, 146 (1958).

The ARB found incorrect the reasoning of decisions such as Bartlik v. United States Dept. of Labor, 1994 WL 487174, *3 (6th Cir. 1994), and vacating order, 34 F.3d 368 (1994), and en banc decision, 62 F.3d 163 (1995), where it was suggested that "inherent authority" to reconsider final adjudicative orders cannot exist, because adjudicative agencies have only such power as is expressly delegated to them by Congress.

In Macktal, the ARB had issued an order adopting the ALJ's recommendations on an award of attorney's fees. The ARB was under the impression at the time that Respondent had not filed a brief; however, Respondent had timely submitted a brief that was filed with the BRB. The ARB indicated that the fault was partially Respondent's for naming the clerk of the BRB on its address label, but that DOL was also partially at fault, because such misdeliveries are usually re-routed to the proper office. The ARB found that reconsideration was appropriate under the circumstances, even though Complainant would be temporarily deprived of a favorable fee decision and may eventually be left with a less personally desirable outcome, given the paramount interest of due process.

[Nuclear & Environmental Digest IX M 2]
AGENCY'S INHERENT POWER TO SET AND ENFORCE STANDARDS OF CONDUCT

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Nov. 20, 1998), in discussing whether an agency has the inherent authority to reconsider its decisions, the ARB listed areas in which it was beyond dispute that agencies have inherent authorities. The Board wrote: "Nor can there be any doubt that administrative tribunals have inherent authority to bar persons from appearance before them on grounds of improper conduct. Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926). Similarly, agencies have inherent authority to set and enforce standards of conduct for attorneys while appearing before them. Touche Ross & Co. v. SEC, 609 F.2d 570, 581 (2d Cir. 1979)." Macktal, 86-ERA-23 @ n.3.

[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; EMPLOYEE NOT A "TEAM PLAYER"

In Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ALJ found that Respondent had concluded that Complainant (a new hire) was not the "team player" Respondent sought and that Complainant's objection to the burial of oil barrels was the last straw. The ARB agreed with the ALJ's conclusion that Respondent did not consider Complainant to be a team player, but clarified:

It is well-settled that the employee protection provided by the SWDA and similar statutes does not prohibit an employer from imposing a wide range of requirements on employees. See, e.g., Kahn v. U. S. Sec'y of Labor, 64 F.3d 271, 279 (7th Cir. 1995) (under the Energy Reorganization Act); see also Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 n.3 (8th Cir. 1985) (noting, in a case arising under Title VII of Civil Rights Act of 1964, that employer may develop arbitrary, ridiculous and even irrational policies as long as they are applied in a nondiscriminatory manner), cert. denied, 475 U.S. 1050 (1986). When an employer applies an otherwise legitimate criterion in such a way that it interferes with the exercise of specific whistleblower rights, however, the employer acts in violation of the employee protection provision of the corresponding statute. See Assistant Sec'y and Ciotti v. Sysco Foods of Philadelphia, ARB No. 98-103, ALJ Case No. 97-STA-00030, July 8, 1998, slip op. at 8 (citing Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Dec., Aug. 6, 1992, slip op. at 5).

   An employer's expectation that an employee interact with others in the company as a "team player" does not constitute a proscribed criterion per se. See Odom v. Anchor Lithkemko/ International Paper, ARB No. 96-189, ALJ Case No. 96-WPC-0001, Oct. 10, 1997, slip op. at 12; Erb v. Schofield Mgmt., ARB No. 96-056, ALJ Case No. 95-CAA-1, Sept. 12, 1996, slip op. at 2-3. Nonetheless, the extension of that expectation to a point where it interferes with protected activity is prohibited. Therefore, Akins legitimately could require Franklin employees to follow management's lead unquestioningly in most aspects of their work, including the scheduling of overtime work and the manner in which Franklin's work generally was accomplished. However, Akins could not legitimately penalize Timmons for raising SWDA-based objections to Franklin's plan to bury the drums of oil.

The ARB concluded that Respondent was a close-knit company, that Complainant's performance was commented on negatively by the company manager to other employees, and that Complainant was considered an outsider. Nonetheless, the ARB found that the not-a-team- player justification for termination of Complainant's employment was pretext where there was temporal proximity between Complainant's protected activity and his termination, Respondent could not explain adequately why it had waited until then to actually terminate the employment (almost a month after Respondent purportedly had decided to do so), and testimony indicated that Respondent's managers were still uncertain regarding whether or not to terminate Complainant's employment as of the date of the protected activity.

[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; SHIFTING EXPLANATIONS

A shift in Respondent's explanation for a termination action provides support for the conclusion that the action was motivated by retaliatory intent. Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Dec. 1, 1998).

[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; REJECTION OF RESPONDENT'S EXPLANATIONS OF POOR WORK PERFORMANCE NOT A SUBSTITUTION OF BUSINESS JUDGMENT

In Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ARB found that Respondent had failed to establish that Complainant's poor work performance was the sole reason for his termination from employment, even though Respondent's manager had expressed concerns about Complainant's performance to other workers. Respondent contended that the ARB's "rejection of its explanation for the termination action effectively imposes a requirement on employers to provide formal warnings prior to terminating whistleblowing employees on the basis of unsatisfactory performance, even if such warnings are not required by the employer's established practice or procedure."

The ARB disagreed, holding that its conclusion that Complainant's termination was prompted by his protected activity was based on a number of factors, and did not run afoul of the prohibition against DOL supplanting the employer's business judgment. The ARB held that the failure of supervisory personnel to advise Complainant of any perceived shortcomings in his work performance was a relevant factor, but did not itself play a determinative role in its conclusion.

[Nuclear & Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE BELIEF OF COMPLAINANT; NOT NECESSARY THAT RESPONDENT PROCEED TO ENGAGE IN ACTIVITY COMPLAINED OF

In Timmons v. Franklin Electric Coop., 1997 -SWD-2 (ARB Dec. 1, 1998), Complainant had verbally objected to the burial of four oil barrels because he believed that the oil was contaminated and the barrels were leaking. The ARB found that Complainant's belief was reasonable, and therefore protected activity. The ARB rejected Respondent's contentions that in order to constitute protected activity, it was necessary for it to have proceeded with the original plan to bury the oil barrels (in fact, after Complainant's objection, the barrels were transferred to a disposal company) or to file a more formal complaint.

[Nuclear & Environmental Digest XII D 10]
PROTECTED ACTIVITY; REFUSAL TO WORK ANALYSIS NOT APPLICABLE WHERE CONFLICT BETWEEN SUPERVISORY DIRECTION AND EMPLOYEE RESPONSE WAS AVOIDED

In Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ARB found that the ALJ erroneously applied the "work refusal" standard provided in Pensyl v. Catalytic, Inc., 1983-ERA-1 (Sec'y Jan. 13, 1984), because Respondent's foreman withdrew his directions almost immediately after Complainant voiced his objections to a plant to bury oil barrels, and thus did not place Complainant in a position where he may have refused to comply with supervisory instruction. The ARB held that "[b]ecause a direct conflict between supervisory direction and employee response was avoided, the Pensyl work refusal analysis is not applicable." Timmons, 1997-SDW-2 @ n.5.

[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT; EVENTS OCCURRING AFTER HEARING; PRODUCTIVE AND AMICABLE WORKING RELATIONSHIP

In Jones v. EG & G Defense Materials, Inc., 1995-CAA-3 (ARB Dec. 24, 1998), Complainant was successful in establishing entitlement to relief under the the employee protection provisions of the Clean Air Act, 42 U.S.C. §7622, the Toxic Substances Control Act, 15 U.S.C. §2622 , and the Resource Conservation and Recovery Act, 42 U.S.C. §6971. Respondent sought reconsideration based upon, inter alia, events occurring after the hearing that allegedly made reinstatement impossible. Upon reconsideration, the ARB noted that under the CAA and the TSCA, reinstatement is an automatic remedy (under the RCRA, it is an option). The ARB observed that "[i]n rare instances, front pay may be used as a substitute for reinstatement where there is 'irreparable animosity between the parties,' Blum v. Witco Chem. Corp. 829 F.2d 367, 374 (3d Cir. 1987), and 'a productive and amicable working relationship would be impossible.' EEOC v. Prudential Federal Sav. and Loan Ass'n, 763 F.2d 1166, 1172 (10th Cir.), cert. denied, 474 U.S. 946 (1985)." Jones, 1995- CAA-3 @ 10. The ARB, however, rejected each of Respondent's arguments as to the impossibility of a productive and amicable working relationship.

Complainant obtained a new job in a different State. The ARB distinguished Title VII authority cited by Respondent because under Title VII, reinstatement is merely optional. The ARB also found it significant that Complainant had submitted an affidavit stating that he still wishes to be reinstated, is willing to move, and believes that an amicable and productive working relationship is possible.

"Difficulties" between Complainant and some subordinates. Respondent argued that "difficulties" existing between Complainant and some of his subordinates in the safety department would prevent a productive working relationship, stressing that "dramatic changes" had been made, including a trebling of employees since Complainant was a manager. The ARB, however, found that the additional employees and changes in the department would tend to diminish the impact of past disagreements between Complainant and his subordinates (e.g., the absence of the person responsible for discharging Complainant).

Bumping of current safety manager. The ARB rejected Respondent's objection that reinstatement of Complainant would bump the current safety manager, finding that Respondent is large enough to find work for the displaced safety manager.

Complainant's lack of experience in "hot operations". Respondent contended that reinstatement was not possible because Complainant lacks experience in "hot operations." The ARB rejected this contention because when Complainant was originally hired, hot operations were to begin in a short time thus, Respondent obviously believed Complainant was competent to manage such operations. The ARB noted Complainant's submission of evidence showing that he has endeavored to stay current, and his statement of eagerness to take any required training. The ARB also noted that it was Respondent's unlawful discharge that caused Complainant's lack of experience.

Complainant's public appearances and participation in lawsuit. Respondent contended that Complainant's public appearances in which he discussed chemical weapons destruction, and his participation as an expert witness in a lawsuit against Respondent, rendered his reinstatement impractical. The ARB found this contention "very troubling," finding that Complainant's participation in a lawsuit concerning the environmental dangers of Respondent's facility "is exactly the type of activity that the environmental acts protect." Id. @ 11 (footnote omitted). The ARB also dismissed Respondent's contention that Complainant's testimony and press contacts were unprotected personal attacks on the character of Respondent's employees, although it conceded that reinstatement could be properly denied "in situations where an employee's public criticism of the employer and co-workers is highly personalized and inflammatory...." Id. @ 11. The ARB found that Complainant's statements merely faulted Respondent's facility's safety, which is his protected right under the environmental acts.

[Nuclear & Environmental Digest XVI B 6]
STAY PENDING JUDICIAL REVIEW; STANDARD

In Jones v. EG & G Defense Materials, Inc., 1995-CAA-3 (ARB Dec. 24, 1998), the ARB held that three criteria ordinarily are used when considering a request for a stay: the likelihood that the movant will prevail on the merits, whether the movant will suffer irreparable injury in the absence of a stay, and whether a stay is in the public interest. In the instant case, the ARB denied a stay, declining to rule on a Constitutional argument proffered by Respondent, and finding that Respondent was unlikely to prevail on the merits (observing that the ARB had affirmed the ALJ's recommended order); finding that a stay would prolong the stigma and otherwise frustrate the public purpose of restoring a successful complainant to the status enjoyed prior to the statutory violation; and essentially finding that the alleged irreparable harm (such as causing another employee to be bumped from his position) was not credible or was the fault of Respondent rather than Complainant.

[Nuclear & Environmental Digest XVI C 2 c i]
RECONSIDERATION; BACK PAY; EVIDENCE THAT COMPLAINANT OBTAINED A NEW JOB; ORDER TO PRODUCE INCOME TAX RETURNS

In Jones v. EG & G Defense Materials, Inc., 1995-CAA-3 (ARB Dec. 24, 1998), the ARB amended a back pay order on reconsideration to permit the deduction of subsequent earnings where Respondent presented evidence that Complainant had obtained a new job. The ARB ordered that Complainant produce copies of his federal income tax returns for the calculation.

[Nuclear & Environmental Digest XVI C 2 c v]
BACK PAY; MITIGATION OF DAMAGES; BURDEN OF PROOF ON RESPONDENT

In Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ALJ found that Complainant could have found alternative work within eight weeks of his termination from Respondent's employment had he exercised reasonable diligence. The ARB, however, found that the ALJ did not apply the correct legal standard because the burden of proof on mitigation is on Respondent. Complainant had put on evidence indicating that he had sought alternative employment (through union locals), accepted suitable employment when it was presented (self-employment in logging and sawmills), and remained available for employment even while engaged in building his house ("... if a good job had come along where I could make money, I would have took the job and hired someone to finish my house."). Respondent failed to counter this evidence, which the ARB found to be a serious omission. The ARB distinguished this scenario from a case where the complainant makes no effort to obtain suitable employment during the back pay period.

[Nuclear & Environmental Digest XVI G 2 b]
AFFIRMATIVE RELIEF

In Marcus v. U.S. Environmental Protection Agency, 1996-CAA-3 and 7 (ALJ Dec. 15, 1998), Complainant had been reinstated to a comparable position as the result of a prior DOL whistleblower lawsuit. The ALJ in the instant action found in her recommended decision that Respondent had again violated several environmental whistleblower provisions by "badmouthing" him (e.g., in providing negative references to a reference checker), and by isolating him. Complainant sought affirmative relief in the form of a detailed order specifically stating all of the terms of employment that must be undertaken in order to remedy the effects of these adverse actions. The ALJ agreed that a detailed consent agreement or ALJ order would be necessary. She noted that "[i]f the parties had been able to successfully integrate Complainant back into the EPA, the present suit would not have been necessary. Accordingly, I order the parties to attempt to reach a mutually agreeable plan to integrate Complainant back into the agency." The ALJ stated that the following concerns must be addressed: (1) finding a way to allow Complainant to work at the office (Complainant works at home because of allergies; the ALJ noted that although Complainant has an allergic reaction to EPA's present building, testimony indicated that a relocation may be forthcoming); (2) ensuring that Complainant's duties are meaningful; (3) detailing how other EPA employees will be informed of this decision, including postings, meetings, or any other mutually agreeable method; (4) prohibiting "bad mouthing" or otherwise providing information or opinions relating to Complainant that would be potentially damaging to his personal or professional reputation or privacy interests absent good cause; (5) providing training for Complainant's supervisors and other managers as to the prohibition of adverse actions against whistleblowers and for guiding EPA managers in how to deal with situations such as requests for references or for expert testimony.

[STAA Digest II H 4 c]
MOTION TO REOPEN/RECONSIDERATION; MISTAKES IN REMAND ORDER; ALLEGED ATTORNEY MISREPRESENTATION; ISSUE NOT ADDRESSED

Requests to reopen a final decision are disfavored. Jackson v. Protein Express, 1995-STA-38, slip op. at 2 (ARB May 29, 1998). Reconsideration should be granted only to correct manifest errors of law or fact or to present newly discovered evidence. Id.; Macktal v. Brown and Root, Inc., 1986-ERA-23 (ARB Nov. 20, 1998).

In Leidigh v. Freightway Corp., 1987-STA-12 (ARB Dec. 24, 1998), the ARB declined to reopen a case where:

(1) Although an earlier remand order of the Secretary contained a couple of misstatements of fact, the ALJ corrected the mistakes in his recommended decision on remand, and the ARB included the correct statement of the facts in the Final Decision.

(2) Complainant contended that his lawyer "misrepresented" him by failing to apply STAA Section 405(b), the "refusal to drive" provision, but a physician's report submitted by Complainant in support of this assertion was dated five years after the alleged refusal to drive, and, reviewing the OSHA Administrator's preliminary findings, there was no indication that the relevant complaint included a refusal to drive element. The ARB noted that it would not normally rely on the Administrator's findings, but would look to the record made before the ALJ; however, in the present circumstances, those findings were the best evidence of the nature of Complainant's complaint.

(3) There was no evidence to support Complainant's assertion that he had requested a leave of absence to correct his medical condition. [Editor's note: apparently this ground for reopening was based on the theory that this issue should have been addressed by DOL. The ALJ and the ARB had found that the leave of absence had been requested for the purpose of getting representation from the union in regard to Complainant's options upon a facility closing.]

[STAA Digest IV A 1]
DIRECTED VERDICT/JUDGMENT AS A MATTER OF LAW

In Scott v. Roadway Express, Inc., 1998-STA-8 (ALJ Nov. 6, 1998), the ALJ, viewing the evidence in a light most favorable to Complainant and drawing all reasonable factual inferences in Complainant's favor, granted Respondent's "motion for a directed verdict" on Complainant's section 405A complaint upon completion of Complainant's case, finding that Complainant had not established a causal connection between his protected activity and his discipline or discharge. The ALJ noted that current FRCP 50, now provides for a "Judgment as a Matter of Law" rather than a "directed verdict," but that the change was not intended to change the standards under which "directed verdicts" could be granted. The ALJ also noted that the use of "directed verdicts" appears to have the imprimatur of the Sixth Circuit in STAA cases, citing Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). The ALJ, however, refused a similar motion for a directed verdict at the close of Complainant's evidentiary presentation on a section 405B,"refusal to drive" complaint, finding that Complainant had established a prima facie case. He also denied a motion for a directed verdict on the issue of whether the Secretary of Labor should defer to the outcome of an action under a collective bargaining agreement.

[STAA Digest V B 2 c]
REFUSAL TO PARK AND UNLOAD

Refusal to unload a truck from the roadside would constitute protected activity if the refusing driver has a reasonable apprehension of serious injury. Garcia v. AAA Cooper Transportation, 1998-STA-23 (ARB Dec. 3, 1998). In Garcia, the only evidence Complainant presented to support the reasonableness of his concern about the safety of unloading was his own testimony. Respondent, however, presented testimony of two employees who that same day were able to assess the situation with the same trailer used by Complainant, and who found that the delivery could be made safely. Respondent also presented evidence from two employees of the customer who reported that deliveries were made daily from trucks parked on the street, and that in fact a UPS truck was making a delivery at the same time as Complainant's aborted delivery. Finally, Respondent also presented evidence that other of its drivers routinely made deliveries to the same location without problems or safety concerns. The ARB found, therefore, that substantial evidence supported the ALJ's conclusion that Complainant failed to prove that his safety concerns were reasonable. Thus, Complainant did not engage in protected activity under the STAA.

[STAA Digest VI B 4]
FACIALLY NEUTRAL POLICY OF ISSUING WARNING LETTERS TO DRIVERS WHO HAVE NO AVAILABLE LEAVE WHEN TAKING SICK LEAVE AS A VIOLATION OF THE STAA

In Scott v. Roadway Express, Inc., 1998-STA-8 (ALJ Nov. 6, 1998), Complainant made complaints to his supervisors, his union, and eventually OSHA, related to the discipline he received for taking sick days, and the ALJ found that this constituted protected activity. The ALJ, however, found that Respondent neither disciplined nor discharged Complainant because of these complaints. Complainant's refusal to drive for illness was also found by the ALJ to constitute protected activity. The ALJ found that Respondent violated the employee protection provision of the STAA when if disciplined Complainant for the refusal to drive as it did other drivers pursuant to its "absence/attendance" policy. Complainant was later discharged. Although the discharge was based in part on his protected activity, Respondent successfully established that it would have discharged Complainant even in the absence of his protected activity. Finally, the ALJ held that Respondent's "facially-neutral policy of disciplining employees who have engaged in statutorily-protected activity violates the Act." Slip op. at 33. As a remedy, the ALJ recommended the posting of a "Notice of Findings" concerning the recommended decision at Respondent's facility to the effect that:

* * *

   Roadway's Akron facility's policy of issuing letters of warning to drivers who have no personal vacation days, sick leave or annual leave days available and do not qualify for family medical leave and who take (a) sick day(s) because their ability or alertness to drive is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the motor vehicle violated the Surface Transportation Assistance Act in this matter.