Train Law Blog : Railroad Injury Lawyer & Attorney : Cahill Goetsch & Perry Law Firm : Railway Worker Injuries & Accidents

For those of you interested in the Federal Rail Administration's Final Rule on the use of cell phones and other electronic devices, here it is.  The Rule is that railroad operating employees can "not use an electronic device if that use would interfere with the employee's or another railroad operating employee's performance of safety-related duties." However, there is an exception for deadhead operating employees: "a railroad operating employee who is in deadhead status and not inside the cab of a controlling locomotive may use an electronic device only if the employee is not using the device in such a way that interferes with any railroad operating employee's personal safety or performance of safety-related duties." Also, during any period of time when cell phones are not prohibited, employees are free to use their personal cell phone any way they wish, including using the camera function to document unsafe conditions on the property (assuming that does not run afoul of any applicable railroad operating rule).

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Federal Rail Safety Act Section 20109(c)(1) prohibits railroads from "deny[ing], delay[ing] or interfer[ing] with the medical or first aid treatment of an employee who is injured during the course of employment." In the first case to interpret the meaning of (c)(1), OSHA took the position the scope of that prohibition goes beyond initial medical treatment. However, the ALJ's post-trial decision adopted a narrower scope: "I conclude that Section 20109(c)(1)'s mandate prohibiting railroads from 'deny[ing], delay[ing] or interfere[ing] with medical or first aid treatment of an employee who is injured during employment' applies to the temporal period surrounding the injury."  Santiago v. Metro North at page 24. It remains to be seen if this narrower scope will prevail on appeal to the ARB or in the federal courts.

However, it is clear the scope of Section 20109(c)(2) is not so limited. Section (c)(2) mandates that railroads "may not discipline, or threaten discipline to, an employee . . . for following the orders or treatment plan of a treating physician." Thus (c)(2) explicitly prohibits railroads from disciplining an employee during the entire period of time the employee is following the orders or treatment plan of a treating doctor. And the absence in (c)(2) of any phrase qualifying that the employee must have been "injured during the course of employment" means that railroads are prohibited from disciplining any employee for following the orders or treatment plan of a treating doctor.  This means a railroad cannot use absences from work ordered by a treating doctor as a basis for attendance discipline.  And it means an employee cannot be disciplined for insubordination when he follows his doctor's order not to travel and thus refuses to travel to a railroad medical department appointment.

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Another Judge has ruled that the Railway Labor Act does not preclude Federal Rail Safety Act actions. To quote from the second post-trial ALJ FRSA decision to be handed down:

          The reach of the RLA is limited to disputes involving the interpretation or application of existing labor agreements. It does not address allegations or claims that the railroad violated federal statutes prohibiting discrimination against an employee. . . . The source of the instant claim is Sections 20109(a)(4) and 20109(c)(1) of the FRSA, which prohibit any railroad from discriminating against an employee for reporting a work injury and prohibits a railroad from denying, delaying or interfering with the medical or first aid treatment of an employee injured during the course of employment. Resolution of the question of whether Metro North discriminated against the Complainant requires interpretation and application of the FRSA and not the CBA between the parties. The present action is not preempted by the RLA. 

Anthony Santiago v. Metro North Commuter Railroad Co., Inc, 2009-FRS-00011 (September 14, 2010) at pages 14-15. For the complete decision, click here. More about this case to come.

Anthony Santiago v. Metro North Commuter Railroad Co., Inc

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As of August 31, 2010, the Federal Rail Safety Act has its own set of regulations setting forth the requirements and procedures for every aspect of FRSA litigation, including the filing of complaints, OSHA investigations, appeals to ALJ de novo hearings, review by the ARB, and optional federal court jury trials. You can access the complete regulations by going to the FRSA Library and clicking on the link at the "FRSA Regulations" heading. Any comments on these new regulations must be sent to the DOL by November 1, 2010, via http://www.regulations.gov and refer to Docket No. OSHA-2008-0027.

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