FRSA Forces Railroad To Give Injured Employee Return To Work Physical

A recent decision against Amtrak clarifies the Federal Rail Safety Act rights of injured employees to return to work over a railroad's objection.

After Amtrak locomotive engineer Jonette Nagra reported a work related injury, her treating neurosurgeon kept her out of work on temporary total disability. Eventually her doctor released her to return to work full duty with no restrictions, but Amtrak refused to give her a return to work physical because she had filed a FELA lawsuit alleging permanent disability and had refused Amtrak's offer to settle conditioned on the surrender of all her rights.

Administrative Law Judge C. Richard Avery found Amtrak's conduct violated FRSA subsections (a)(4) and (c)(2) and called for punitive damages. Judge Avery's Decision is notable for its further elucidation of railroad's workers FRSA right to return to work pursuant to a treating doctor's recommendation. Citing the ARB's Decision in Rudolph v. Amtrak, Judge Avery noted:

The ARB found that under (c)(2), attempting to return to work based on a treating physician's recommendation is an FRSA protected activity, and a railroad's refusal to permit an employee's return to work based on a physician's recommendation constitutes adverse employment action. . . .

When an employee seeks to return to work based on his or her treating physician's recommendation, the railroad's refusal to allow the employee to return to work constitutes discipline in violation of FRSA subsection (c)(2) unless the railroad's refusal is based on FRA medical standards for fitness for duty or secondarily, the railroad's medical standards for fitness for duty.

In this case there was no FRA medical fitness standard or Amtrak medical fitness standard that prevented Nagra from returning to work. In other words, Amtrak has no legal defense to the adverse action taken under subsection (c)(2) of the FRSA.

Judge Avery ordered Amtrak to give Nagra a return to work physical and to reinstate her if she passes it. And in light of Amtrak's indifference and disregard for its employee's FRSA protected rights, the Judge ordered Amtrak to pay punitive damages as well as attorney fees.

This is another example of the independence of FRSA complaints from FELA lawsuits or claims. The allegations pled in a FELA lawsuit or a worker's refusal to accept a railroad's FELA settlement offer will not excuse a railroad's violations of the FRSA. For the full text of Nagra v. National Railroad Passenger Corp., click here.

ALERT: FRSA Trumps Railroad Attendance Policy Discipline!

 

It's official: railroad employees who follow their treating doctor's orders not to work cannot be disciplined for those absences, even if the absence is due to an off-duty medical condition. Why? Because Bala v. PATH now is the law of the land, having just been affirmed in full by the highest appeals tribunal in the U.S. Department of Labor, the Administrative Review Board. The ARB's ruling applies to railroads nationwide, and every OSHA Whistleblower office in the country now is required to enforce it.

A year and a half ago, Judge Timlin stunned the railroad industry when she ruled in Bala v. PATH:

the purpose of the FRSA is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents. . . . in enacting the FRSA, Congress stated that 'employees should not be forced to choose between their lives and their livelihoods.' . . . After reviewing the FRSA's text and purpose, I find it clear that Section 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety of railroad passengers and fellow employees. I thus find that Section 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.

In other words, safety trumps discipline. PATH and the American Association of Railroads disagreed, and filed an appeal arguing that discipline trumps safety.I filed a brief endorsing Judge Timlin's interpretation of FRSA Subsection (c)(2), and the United States Solicitor of Labor weighed in with an amicus brief confirming that FRSA Section (c)(2) protects ALL medically impaired railroad employees who follow their doctor's orders not to work, even workers who are injured off the job or have a non-work related medical condition.

In response,the ARB's Decision fully endorses Judge Timlin's interpretation, holding: "Subsection (c)(2) of 49 U.S.C. 20109 affords railroad employees protection from discipline when following treating physicians' orders that stem from off-duty injuries." The ARB stressed that both the plain language of Subsection (c)(2) and the FRSA's legislative history mandates that conclusion. And the ARB emphatically rejected the AAR's argument that such an application of (c)(2) will interfere with the ability of railroads to discipline employees:

nothing in Section 20109 precludes an employer from disciplining an employee for excessive absences. The only limitation set out in (c)(2) is that an employee cannot be disciplined because he/she is complying with the orders of treatment plan of a treating physician. . . . The express statutory language set out in Sections (c)(1) and (2), as well as the legislative history reflecting Congress's broad concern over safety in the railroad industry and protection of injured railroad workers, makes clear that Congress did not intend to foreclose from protection railroad workers who "follow orders or a treatment plan of a treating physician" even when the injury they are being treated for occurred off-duty.

The bottom line is, if an employee notifies a railroad his treating doctor has ordered him not to work, the railroad cannot use that absence for disciplinary purposes. And it doesn't matter if the absence is due to sickness, an off-duty injury, or an on-duty injury. From now on, any railroad that disciplines employees for such absences will pay a steep price in FRSA damages and attorney fees. For all the briefs and decisions regarding Subsection (c), click here. For more information on all the elements of the Federal Rail Safety Act, go to Rail Whistleblowers Library.

The Filing Of A FRSA Complaint Is a VERY Protected Activity

Question: What is the surest way for a railroad to get hit with punitive damages?
Answer: Base a disciplinary charge on an employee's FRSA complaint.
Railroads that have tried this bone headed move are now 0-3, and OSHA has slammed them with punitive damages every time.

The latest example comes from Pan Am Railways. Subsection (a)(3) of the Federal Rail Safety Act declares that when a worker files a FRSA Complaint with OSHA (or cooperates with OSHA's investigation into a co-worker's FRSA complaint), it is a protected activity that cannot be used in whole or in part for disciplinary purposes. After reporting an ankle injury while stepping down from a train in a Yard, Jason Raye was charged with violating a safety rule. The usual kangaroo hearing was held during which he described how the ankle injury occurred. He was found guilty and disciplined.

Raye then filed a FRSA complaint with OSHA's Whistleblower Office in which the description of how his ankle was hurt differed somewhat from his testimony at the Company trial. Some manager then got the bright idea of charging him again, this time for lying to a government agency, a firing offense. Another hearing was held, after which the Company dropped the charge.

But the damage was done, and Raye amended his FRSA Complaint to include a subsection (a)(3) violation. OSHA agreed, and ordered Pan Am Railways pay $50,000 in punitive damages and emotional distress. OSHA's explanation for why punitive damages are mandated for subsection (a)(3) violations speaks for itself:

The acts of accusing an employee of lying to OSHA after he filed an FRSA complaint, charging him with violating safety rules that if he was found guilty of could result in his termination, and conducting trial proceedings, have a chilling effect on employees and would to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, as it was after the hearing in this case, that does not remedy this chilling effect, as the act of bringing the charge against an employee affects all of the Railroad's employees' willingness and ability to exercise their most basic rights under FRSA.

Once a FRSA allegation has been made to OSHA, it is OSHA's responsibility, not the Railroad's, to establish the truth of assertions made by both parties. Under these circumstances the Railroad's use of an internal, management run disciplinary hearing to establish facts that are the subject of a federal OSHA investigation is overreaching at best and interfering with a federal investigation at worst. Regardless of the Railroad's intent, such a heavy handed approach would clearly chill other employees from filing similar claims.

The bottom line for railroad managers everywhere? Don't even think about using a FRSA complaint for disciplinary purposes, unless you enjoy the prospect of paying punitive damages out of your own pocket. For the full text of OSHA's Merit Finding in Raye v. Pan Am Railways, Inc., click here. The other two subsection (a)(3) cases are Blocker v. Metro North Railroad, and Young v CSX Transportation.