It’s official: injured railroad workers who seek medical attention now have a triple layer of protection against retaliatory discrimination. A U.S. District Court has joined OSHA and the Administrative Review Board in ruling that a railroad’s denial, delay, or interference with the medical treatment of an injured employee is a form of “discrimination” prohibited by the Federal Rail Safety Act.
Union Pacific Track Foreman Rene Delgado was walking through a Yard when a discarded piece of rusty scrap metal cut his foot. He told his co-workers to start taking him to a nearby hospital, and called a supervisor to inform him he was on his way to the hospital. But a senior manager ordered Delgado not to go to the hospital and to return to the Yard office instead. Delgado complied, and then was sent to a railroad clinic rather than a hospital. The clinic instructed Delgado to stay off his feet, but instead he again was taken back to the Yard to do a “reenactment” of the incident. Management then told him to return the next day for light duty (to avoid reporting a lost time injury), but the next day his pain was so intense he went to a hospital, where he was immediately admitted for a badly infected foot that now required surgery.
The Union Pacific argued it is not “discrimination” when a railroad denies, delays, or interferes with an injured worker’s medical treatment. But the federal district judge soundly rejected that argument:
The Court has no difficulty in construing the denial of medical treatment as discrimination against an employee who may potentially disclose a hazardous condition at the work site. . . . Seeking medical treatment for a workplace injury is likely, if not almost certain, to lead to the disclosure of the hazard that caused the injury, and in that light, a carrier’s efforts to “deny, delay, or interfere” with an injured employee’s pursuit of medical treatment can easily be understood to constitute a form of discrimination, and retaliation, against such an employee.
The Court therefore concludes that Section 20109 provides a private right of enforcement to an employee who alleges that a railroad carrier violated the provisions of subsection (c)(1) by denying, delaying, or interfering with the medical or first aid treatment of an employee injured during the course of employment.
Employees who disclose a hazard in the workplace are protected under FRSA subsection (b)(1)(A). Delgado confirms that when employees notify the railroad of a work related injury they also are likely disclosing the workplace safety hazard that caused the injury. So employees who report a work-related injury now have three layers of protected activity: subsection (a)(4) protects them for notifying the railroad of the injury; subsection (c)(1) protects them for seeking medical treatment for the injury ; and subsection (b)(1)(A) protects them for reporting the hazardous safety condition that caused or contributed to the on-the-job injury.