WARNING UPDATE: see the 3rd Circuit’s decision in PATH v. U.S. DOL.

Any rail worker absence ordered by a treating doctor can no longer be used for attendance discipline purposes. That is the message of a ground-breaking decision interpreting the scope of FRSA protected medical treatment.

Subsection (c)(2) of the FRSA prohibits railroads from disciplining employees for following the orders or treatment plan of their treating physician. In Bala v. PATH, ALJ Theresa C. Timlin explains why the FRSA protects ALL employees–not just on the job injured employees–from such discipline.

When PATH signal repairmen Chris Bala’s family physician ordered him not to work in order to recover from a non-work related medical condition that rendered him unfit for duty, he duly notified the Railroad and followed his doctor’s medical treatment plan by staying home. However, that absence triggered a charge he was in violation of PATH’s attendance policy, and, after the usual kangaroo court, Bala was found guilty and suspended for three days.

OSHA found PATH violated the FRSA, PATH objected, and a full trial was held before ALJ Timlin.  Her Decision is the first to apply Section (c)(2), and is remarkable for its fidelity to the letter and spirit of the FRSA..

Judge Timlin begins by stressing the purpose of the FRSA is “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” She points out that “in enacting the FRSA, Congress stated that ’employees should not be forced to choose between their lives and their livelihoods.'”

Applying the cardinal principals of statutory interpretation to subsection (c)(2), she notes that its language “plainly and unambiguously prohibits railroads from suspending an employee for calling out sick pursuant to orders from a treating physician that the employee is not fit for duty.”

She goes on to reject the argument that the language of (c)(1) somehow qualifies or limits the scope of (c)(2): “when Congress included the phrase ‘during the course of employment’ with regard to emergency medical care in subsection (c)(1), but omitted that phrase with regard to treatment plans in subsection (c)(2), it acted purposely, and did not intend to limit the protection of (c)(2) only to treatment plans involving on-the-job injuries.”

Her conclusion is worth quoting at length:

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.

And in fact all railroads have mandatory safety rules similar to this one on Metro North Railroad: “Be alert and attentive when performing duties and be properly rested when reporting for duty.” That is because a rail worker who is not alert and attentive or is otherwise unable to perform the duties of his job is jeopardizing the safety of himself, his fellow workers, and the public. Such an employee constitutes a hazardous safety condition, and for such an employee to report to work would be a violation of the railroad’s own safety rules.

So when a worker notifies the railroad he is in such a condition, he is protected from discipline under subsection (b)(1)(A) because he is notifying the railroad of “a hazardous safety condition.” And when he follows the medical treatment plan of his treating physician and stays home, he also is protected from discipline under subsection (c)(2).

Bottom line is, if an employee notifies the railroad that his treating doctor has ordered him not to work, the railroad cannot use that absence for disciplinary purposes. And it doesn’t matter is the absence is due to sickness, an off duty injury, or an on duty injury. From now on, railroads who continue to discipline employees for such absences will pay the price in FRSA damages and attorney fees. For more on the FRSA, go to the free Rail Whistleblower Library.