The culture of rail safety will never be the same. In an extraordinary Joint Letter addressed to all the nation’s railroads, the Heads of OSHA and FRA have thrown the switch that will direct the locomotive of rail safety from the old track of retaliation onto the new track of root cause remediation. Their Joint Letter signals the transition from a rail culture where the reporting of an injury is met with retaliation to a rail culture where the reporting of an injury is embraced as an opportunity to uncover and remedy the root cause of the injury. It is a clarion call to replace retaliation with root cause remediation. How? By abandoning abusive discipline and instead focusing on the prevention of future injuries through the elimination of all the hazardous conditions that combined to produce the injury.
The importance of this Joint Letter cannot be overstated. It is addressed to the Presidents of the Association of American Railroads, the American Short Line and Regional Railroad Association, and the American Public Transportation Association. It begins by pointing out that the success of our nation’s rail safety programs depends on the complete and accurate reporting of all employee injuries and safety concerns. The Heads of OSHA and FRA then state:
We are writing to highlight a troubling railroad accident/incident reporting trend and to provide concrete way railroads can improve the safety of their workplaces and improve their compliance with Federal safety regulations and the FRSA. . . . Between August 3, 2007, and March 31, 2012, OSHA received 910 whistleblower complaints under FRSA’s Section 20109. Approximately 63 percent of these complaints involve an allegation that a worker has been retaliated against for reporting an on-the-job injury. FRA and OSHA are very concerned about the high number of complaints, and that the number of whistleblower complaints is escalating.
Their Joint Letter goes on to explain how the disciplinary system must be used to promote, rather than undercut, safety:
To be effective, discipline needs to be assessed evenly and the punishment must fit the infraction. That is, for a given rule violation, similar punishment should be given to an employee who violated the rule without being injured as that given to one who was injured, and it must be appropriate punishment. The perception that injured employees are being singled out for discipline, while non-injured employees who violate the same rules are not disciplined, leads to the development of an organizational safety culture that may inadvertently suppress accurate reporting.
OSHA and FRA are also troubled by the number of whistleblower allegations involving discipline of employees for allegedly falsifying or making false, misleading or conflicting statements about their injuries. In several cases, OSHA’s investigation found reasonable cause to believe that the employee did not provide false or misleading information and that the railroad’s internal investigation did not support the charge. Discipline based expressly on an employee’s injury report has a high potential to chill workplace injury reporting because it may lead employees to believe that anything they say about a workplace injury will be used against them.
We believe that the use of employee discipline as part of a railroad safety program may result in reducing the number of injuries reported by employees, but it will not ultimately succeed in reducing the actual occurrence of injuries. FRA and OSHA are concerned that if employees fear discipline and do not report an injury that has occurred, we all lose the opportunity to determine the root cause of the injury and focus on prevention.
The Joint Letter goes on to “strongly encourage” railroads to change their safety cultures, and points to improvements recently made by Amtrak to transition from a culture of retaliation to a culture of root cause remediation (more on that later).
This is a watershed moment in the history of rail safety. Historians will look back and mark this as the beginning of the end for the abusive culture of retaliation against rail employees who report injuries and safety concerns. With OSHA and FRA working in sync to enforce the FRSA’s whistleblower protections, it now is just a matter of time before every railroad makes the transition from retaliation to root cause remediation. For the complete text of this landmark FRA/OSHA Joint Letter. For more on the FRSA, go to the free Rail Whistleblower Library.