Could a Maryland state agency stop a handicapped employee, such as one with epilepsy or alcoholism, from driving on the job even though the state hadn't revoked their driver's license?

Plain-English summary

The Director of the Motor Vehicle Fuel Tax Division asked the Attorney General about two employees whose supervisors were considering barring them from driving on state business: one employee with a history of epilepsy-related seizures, including a recent seizure while driving, whose driving duties made up a large part of the job, and another employee who "admits to alcohol abuse." The opinion explained that Maryland's handicap antidiscrimination laws barred an agency from restricting a handicapped employee's driving unless the handicap actually interfered with the employee's ability to drive safely, but that alcoholism was not covered by those particular state antidiscrimination statutes at all. For the epileptic employee, the opinion found the Motor Vehicle Administration's decision not to suspend his driver's license relevant but not conclusive, since MVA's licensing determination addressed only minimum fitness to hold a license generally and could not account for the special demands of his particular job-related driving, a distinction the opinion grounded in the Court of Appeals' decision in Curley v. General Valet Service holding an employer could still be liable for negligently allowing an employee to drive despite the employee's license remaining valid. The opinion directed the Division to weigh the MVA decision, the State Medical Director's opinion, the employee's driving record, and the specific demands of the job before deciding whether the epilepsy posed an unreasonable risk, and prescribed a similar process, centered on the State Medical Director's advice, for evaluating the employee with alcohol abuse, while cautioning that driving should be restricted pending that evaluation unless it was already clear the condition posed no real risk.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Maryland's handicap antidiscrimination statutes and Motor Vehicle Administration licensing standards as they existed in 1983, including a specific finding that Maryland's state antidiscrimination laws at the time did not cover alcoholism, unlike a separate federal law, 29 U.S.C. §794, covering federally funded programs. Maryland and federal disability discrimination law, including the later enactment of the Americans with Disabilities Act, has developed substantially since 1983; verify current disability discrimination law, including how alcoholism and other conditions are treated, before relying on any specific rule described here.

Common questions

If the state Motor Vehicle Administration let an employee keep their driver's license despite a medical condition, did that mean the employee's supervisor had to let them drive on the job?
No, according to this opinion. It found that MVA's licensing decision addressed only whether the employee met minimum standards to hold a license generally, a separate question from whether it was reasonably safe for that employee to perform the particular job-related driving their position required, and cited Curley v. General Valet Service for the principle that an employer could still be held liable for negligently permitting a driver to work despite a valid license.

Did Maryland's disability discrimination laws in 1983 protect an employee whose alcoholism might affect their driving?
Not under the specific state antidiscrimination statutes discussed in the opinion. The opinion found that Maryland's Article 49B and Article 64A handicap protections did not extend to alcoholism, though it noted a separate federal law, 29 U.S.C. §794, treated alcoholism as a covered handicap in federally funded programs, and it recommended supervisors handle alcohol-related driving concerns through the same practical process as other medical conditions anyway.

What steps did a supervisor have to take before restricting a handicapped employee from driving on the job?
The opinion laid out a process: follow any restrictions the MVA had already placed on the employee's license, impose no additional restrictions the employee's handicap didn't actually justify, seek the State Medical Director's opinion if there was a genuine safety concern, and then decide, based on that opinion together with the MVA's decision and other pertinent information, whether the employee's condition posed an unreasonable driving risk before restricting or permitting the driving.

Background and statutory framework

The opinion applied Article 49B, §16(a)(1) of the Maryland Code, which barred discrimination against an employee "with respect to his compensation, terms, conditions, or privileges of employment" based on a handicap unless the handicap was unrelated in nature and extent to the job's performance, and Article 64A, §12A, which similarly barred merit-system actions based on physical handicap except where the handicap involved "a bona fide job requirement." The opinion found epilepsy squarely covered by these provisions but found alcoholism outside their scope, citing the office's own prior opinions, 67 Opinions of the Attorney General 322 (1982) and 63 Opinions of the Attorney General 408 (1978), while noting that a separate federal statute, 29 U.S.C. §794, did treat alcoholism as a covered handicap for federally funded programs.

For the epileptic employee, the opinion weighed a State Medical Director recommendation against on-duty driving for twelve months against the Motor Vehicle Administration's own decision, informed by its Medical Advisory Board under Tr §16-118, not to suspend or revoke the employee's license under the unfitness standard in Tr §16-206(a)(2). The opinion found these two determinations answered different questions: MVA's decision addressed only the employee's fitness to hold a license generally, while the employer's job-specific driving decision required weighing the frequency and nature of the particular driving duties, a distinction grounded in Curley v. General Valet Service, where the Court of Appeals held an employer could be liable for negligently entrusting a vehicle to an employee with a poor driving record despite that employee's license remaining valid because it fell under the point-suspension threshold. For the alcoholic employee, lacking a comparable statutory antidiscrimination floor, the opinion nonetheless recommended the agency follow essentially the same fact-gathering process, centered on seeking the State Medical Director's opinion, before deciding whether to restrict on-duty driving, while flagging that any medical or personnel-file information involved would itself be subject to the Public Information Act's confidentiality protections under Article 76A, §3(c)(i) and (iii).

Citations

Statutes:

• Article 49B, §16(a)(1) (bar on employment discrimination based on physical handicap)
• Article 64A, §12A (bar on merit-system discrimination based on handicap absent bona fide job requirement)
• §16-206(a)(2) of the Transportation Article (MVA authority to suspend or revoke license of unfit or unsafe driver)
• §16-118(a) of the Transportation Article (Medical Advisory Board's advisory role to MVA)
• §16-118(c)(1) of the Transportation Article (MVA referral of licensee cases to the Medical Advisory Board)
• §16-119 of the Transportation Article (authority of physicians to disclose medical information to MVA)
• 29 U.S.C. §794 (federal handicap discrimination protection for programs receiving federal funding)
• COMAR 06.01.01.04A (State Medical Director's authority over employment-related medical examinations)
• COMAR 06.01.01.42D(5)(a) (Medical Director examination to determine disability affecting job performance)
• COMAR 11.17.03.04D(2) (Medical Advisory Board guidelines for licensing individuals with nervous system disease)
• Article 76A, §3(c)(i) and (iii) (confidentiality of medical data and personnel files)

Cases:

• Curley v. General Valet Service, 270 Md. 248 (1973)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Public Employment—Discrimination Against Handicapped—Epilepsy/Alcoholism—Job-Related Driving-Vehicle Laws—State Agency may Relieve Handicapped Employee of Driving Duty if Employee Poses Unreasonable Driving Risk.

May 23, 1983

Mr. Robert L. Serviss, Sr.
Director
Motor Vehicle Fuel Tax Division
Comptroller of the Treasury

You have requested our views on the circumstances under which two employees of the Motor Vehicle Fuel Tax Division (the "Division") may be forbidden from driving on official State business. One employee, whose job entails a great amount of driving, has a history of seizures resulting from epilepsy. The other employee "admits to alcohol abuse".

For the reasons given below, we have concluded as follows:

(1) In light of the decision of the Motor Vehicle Administration ("MVA") that the employee with epilepsy may continue to hold a driver's license, the Division should reevaluate its previous determination that the employee may not drive as part of his job. In conducting this reevaluation, the Division should consider the MVA's decision, the opinion of the State Medical Director, any pertinent information about the effects of the employee's illness that was not presented to the MVA, the employee's past driving record, any special hazards or requirements of his job-related driving, and any other information that might bear on his ability to drive safely. If, after a review of all of these factors, the Division concludes that the employee, as a result of his epilepsy, poses an unreasonable driving risk, it may continue to prohibit his driving while on duty.

(2) The Division should seek the advice of the State Medical Director regarding the effect of the other employee's alcohol abuse on her ability to drive safely. Pending this advice, the Division should not permit her to drive on duty unless it is clear that her alcoholism in fact poses no significant risk of unsafe driving. After the State Medical Director presents an opinion, the Division should then reevaluate whether to permit the employee to engage in job-related driving, taking into account that opinion and other pertinent information. If the Division concludes that the employee, as a result of her alcohol abuse, poses an unreasonable driving risk, it may continue to prohibit her driving while on duty.

These conclusions about the particular employees in question comport with the employing agency's legal obligations under the antidiscrimination laws. In Part IV of this Opinion, we restate these conclusions in more general form, as guidance in future situations involving the job-related driving of handicapped employees.

I
Statutory Protection of Handicapped Employees

This Office has recently reviewed the various statutes that specify the obligations of the State toward its handicapped employees. 67 Opinions of the Attorney General 322 (1982).

It is clear that epilepsy is a physical handicap or impairment within the meaning of these laws. Thus, a supervisor may not "discriminate against" the employee with epilepsy "with respect to his compensation, terms, conditions, or privileges of employment", as long as that employee's epilepsy is "unrelated in nature and extent so as to reasonably preclude the performance of [his] employment". Article 49B, §16(a)(1) of the Maryland Code. Furthermore, "[a]ll merit system actions and transactions shall be made without regard to . . . [his] physical . . . handicap, . . . except when [such] handicap . . . involves a bona fide job requirement." Article 64A, §12A of the Maryland Code.

These statutes are not applicable, however, in the case of the alcoholic employee. Alcoholism is not a condition that is covered by these State antidiscrimination laws. See 67 Opinions of the Attorney General at 330-31; 63 Opinions of the Attorney General 408 (1978).1

1 Alcoholism is a "handicap" within the scope of the federal law that prohibits employment and other discrimination against an "otherwise qualified handicapped individual" in "any program or activity receiving Federal financial assistance". 29 U.S.C. §794. See 67 Opinions of the Attorney General at 331-33. However, we assume that the Motor Vehicle Fuel Tax Division is not such a "program or activity". In any event, the action recommended below with respect to the alcoholic employee is consistent with the requirements of this federal statute.

II
Relieving Driving Duties from Employee with Epilepsy

In our view, the antidiscrimination laws mean that a supervisor may take no action adversely affecting a handicapped employee because of the employee's handicap, unless the handicap prevents the effective performance of the employee's job. When driving is an aspect of such an employee's job, driving duty may not be withdrawn unless the employee's handicap interferes with his or her ability to drive safely. Conversely, if an employee's handicap does appear to interfere with safe driving, these laws do not prevent a supervisor from taking reasonable steps, including refusal to permit on-duty driving, to avert the risk of an accident.

Applying these general rules to the specific case of your employee with epilepsy is difficult, because different officials have reached different conclusions about the effect of the employee's epilepsy on his ability to drive.

On the one hand, the State Medical Director conducted a physical examination of the employee and reviewed the history of his illness, including a recent "day-time seizure while driving". Based on his assessment, the State Medical Director concluded that the employee "not [be] allowed to drive a State owned vehicle for a period of twelve months".2

On the other hand, the MVA also reviewed the employee's record and determined that his driver's license should not be suspended or revoked. The MVA is the agency authorized by law to "suspend, revoke, or refuse to issue or renew the license of any resident ... on a showing by its records or other sufficient evidence that the . . . licensee . . . [i]s an unfit [or] unsafe . . . driver of a motor vehicle". §16-206(a)(2) of the Transportation Article of the Maryland Code.

2 The State Medical Director exercises the authority of the Secretary of Personnel "with respect to medical examinations relating to employment with the State". COMAR 06.01.01.04A. At the request of a department head, the Medical Director may conduct a medical examination "for the purpose of determining whether an employee has any disability which would prevent him from the proper performance of his duties". COMAR 06.01.01.42D(5)(a). However, the regulations do not vest in the Medical Director authority to make the final determination in such cases.

In this case, the MVA, having considered the recommendation of its Medical Advisory Board, decided that the employee's driver's license should not be suspended or revoked.3 Implicit in the MVA's decision is a finding that the employee is not generally "an unfit [or] unsafe" driver because of his epilepsy.4 However, the MVA's decision, limited to the issue of minimal driving fitness, is not determinative of the quite separate question of the employee's fitness to engage in particular job-related driving, which may entail special demands or risks.

3 The Medical Advisory Board advises the MVA with respect to "the physical and mental condition of individuals who seek to drive on highways in this State". §16-118(a) of the Transportation Article. "The [Motor Vehicle] Administrator may refer to the Medical Advisory Board, for an advisory opinion, the case of any licensee ... if the Administrator has good cause to believe that the driving of a vehicle by him would be contrary to public safety and welfare because of an existing or suspected mental or physical disability." §16-118(c)(1) of the Transportation Article. We understand that the Medical Advisory Board does not generally conduct its own physical examination, but instead relies on the reports of others. In this case, the MVA's records indicate that the report of the State Medical Director, who had conducted an examination of the employee, was not reviewed.
4 Under the Medical Advisory Board's Guidelines, an individual with a disease of the nervous system who "has not had an episode of altered consciousness for the preceding 3 years . . . may be considered for any class of license". If such an individual "has not had an episode of altered consciousness in the preceding year, he may be considered for a Class D [cars and light trucks] or E [motorcycles] license only". Finally, "[a]n individual who has had an episode of altered consciousness in the preceding year may not be considered for any class license unless the alteration of consciousness was the result of a recommendation of a physician to discontinue the use of medication because of other medical or surgical considerations." COMAR 11.17.03.04D(2).

In Curley v. General Valet Service, 270 Md. 248 (1973), rev'g 16 Md. App. 453 (1973), an employer was sued for negligence as a result of an accident caused by one of its truck drivers, who had a long record of vehicle law violations but whose total of violation points was insufficient for license suspension. The plaintiff claimed that, in light of the driver's record, the employer was negligent in entrusting the truck to the driver.

The employer argued that it "was entitled to rely upon the public policy of the State that a licensee who is required to drive a motor vehicle in the course of his regular employment (and who therefore spends much more time exposed to the hazards of driving than a person not so employed) is not deemed to be unfit or unsafe to drive . . . until he has been charged with 15 points." 16 Md. App. at 470-71. Because the driver had fewer than 15 points, the MVA had not suspended his license. Thus, the employer argued, it could not be found negligent when it simply relied on this fact in allowing him to drive its truck. The Court of Special Appeals so held.

But the Court of Appeals reversed. It found no absolute defense in the employer's reliance on the fact that the driver's license had not been suspended. Rather, the Court of Appeals held, a reasonable jury could hold the employer liable for negligence because the employer had not independently assessed the driver's ability to drive safely on the job. That is, the employer could be held negligent for failing to take into account the driver's "particular record of moving violations, known to [the employer] at the time it employed [the driver], considered in light of the type of vehicle he was driving and the area in which he was known to be driving it". 270 Md. at 266.

The implications of Curley for the question posed here are reasonably clear: although the Division should give some weight to the MVA's decision, it nevertheless cannot rely on that decision conclusively. The MVA, in determining whether to revoke or suspend the employee's license, did not (and indeed could not) address the issue of whether it would be reasonably prudent for this employee to drive extensively as part of his particular job. If there is a risk that the employee will have a seizure while driving, this risk obviously increases as the amount of driving increases. Although it might be prudent for such an employee to drive, for example, 100 miles a week, it might very well be imprudent, or even negligent, for him to drive 100 miles a day.

The MVA has no authority to take into account such particular job-related considerations; the employer, however, does have the right and duty to take these considerations into account. Certainly, the employer is best able to evaluate the risks that might warrant particular restrictions.

Accordingly, the Division must itself determine, based on all of the relevant available information, whether the employee with epilepsy would pose an unreasonable driving risk.5 If the Division has grounds to believe that the employee does pose such a risk, it may continue to prohibit him from driving on State business in order to protect the public (and the employee) against harm and to protect itself against possible liability. The antidiscrimination laws do not prevent an employer from taking job-related actions of that kind.

5 We understand that the employee not only has a history of seizures, but has had seizures while driving, the most recent of which precipitated the various reviews noted in this Opinion. More caution may well be required in such a case than for a hypothetical employee with epilepsy who has no history of seizures while driving and who drives on State business on a more limited basis.

III
Relieving Driving Duties from Alcoholic Employee

As noted in Part I above, State statutes prohibiting discrimination against handicapped employees do not encompass alcoholism. As a practical matter, however, a supervisor who becomes aware of an employee's alcohol abuse should take action comparable to that required when he or she learns of any other medical condition that might be incompatible with safe driving.

(1) The supervisor should, through proper channels, seek the advice of the State Medical Director regarding the impact of the condition on the employee's ability to drive safely while on duty.

(2) Pending receipt of the State Medical Director's opinion, the supervisor should prohibit the employee from driving on duty, unless the supervisor is convinced that the employee's pattern of alcohol abuse is such that it has no effect on the employee's driving ability. If the supervisor is convinced by the available information that the employee's continued driving poses no unusual risk, then the supervisor would be acting reasonably, that is, without negligence, in allowing the employee to drive.6

(3) After receiving the State Medical Director's opinion, the supervisor should reevaluate the situation to determine whether, in light of that opinion and other relevant factors, the employee's alcohol abuse poses an unreasonable driving risk. If so, the supervisor should not permit the employee to drive on State business.

6 Your letter states, without elaboration, that the employee in question "admits to alcohol abuse". If the employee's alcoholism has had any detrimental effect on her job performance, then she should not be allowed to drive on State business. It is at least conceivable, however, that her alcohol abuse is controlled enough to have had no such effect.

IV
Conclusion

In summary, it is our opinion that the supervisor of an employee with any handicap should follow these guidelines in determining whether such an employee should be permitted to drive on State business:

(1) Any restrictions or conditions that the MVA imposes on that individual's driver's license should of course be followed by the employing agency with respect to the employee's official driving.

(2) If the MVA imposes no such restrictions, the supervisor should generally impose no restrictions on the handicapped driver that are not equally applicable to nonhandicapped drivers.7

(3) If the supervisor believes that the employee's handicap might pose an unreasonable driving risk, the supervisor should seek the opinion of the State Medical Director and, under appropriate circumstances, report pertinent information to the MVA.8

7 There may well be job-related reasons why a supervisor might want to impose certain limitations on the driving of all employees, but special restrictions should generally not be imposed on the handicapped driver.

(4) In light of the State Medical Director's opinion, the MVA's decision, and all other pertinent information, the supervisor should decide whether the handicapped driver poses an unreasonable safety risk. If the driver does pose such a risk, the supervisor should not allow that person to drive on State business.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
Avery Aisenstark
Chief Counsel
Opinions and Advice

8 To the extent that the information consists of "medical . . . data" or "personnel files", the custodian of the information is required to "deny the right of inspection . . . , unless otherwise provided by law". Article 76A, §3(c)(i) and (iii) of the Maryland Code. See also 65 Opinions of the Attorney General 365 (1980). We need not consider here under what circumstances disclosure of such information to the MVA is "otherwise provided by law". See generally 60 Opinions of the Attorney General 554 (1975); 60 Opinions of the Attorney General 559 (1975). Whenever an agency believes that information bearing on the fitness of an employee to drive should be reported to the MVA, this Office should be consulted prior to disclosure. With respect to the authority of the State Medical Director and other physicians to disclose medical information to the MVA, see §16-119 of the Transportation Article.