Once again, the federal government is telling Metro North that its “discipline trumps safety” culture must change. OSHA’s Whistleblower Directorate has found Metro North violated subsection c(2) of the Federal Rail Safety Act in seven cases. In each case, the employee followed his doctor’s order to stay home because he could not safely perform his job duties. In each case, Metro North ignored the doctor’s note and threatened the employee with discipline under its Attendance Policy.
The case of Richard Williams is typical of the seven. After a surgical procedure, William’s treating doctor prescribed narcotic pain medication that “precluded him from safely performing his job duties” for six days. Accordingly, the doctor excused Williams from working his safety sensitive Railroad job during those six days, and when Williams returned to work he gave the doctor’s note to Metro North.
Subsection c(2) of Section 20109 prohibits a railroad from disciplining an employee “for following the orders or a treatment plan of a treating physician.” Nevertheless, in blatant violation of that prohibition, Metro North counted the six day absence against Williams and took “the first step in the disciplinary process” by issuing a letter of warning. Metro North’s conduct is especially troubling because it knowingly acted in direct violation of the U.S. Department of Labor’s official position on the scope of Subsection c(2).
OSHA awarded compensatory damages and attorney fees. In so doing, OSHA rejected Metro North’s argument that a letter of warning does not constitute discipline:
OSHA finds that issuance of a warning letter to an employee in connection with facts such as exist in this matter is an adverse action under FRSA because it could reasonably dissuade an employee from engaging in activity protected under Section 20109 or other FRSA provisions.
Bottom line? Thanks to the FRSA, safety trumps discipline, and a railroad cannot use the threat of discipline to force employees to report to work in a medically unfit condition contrary to their doctor’s orders. Here is OSHA’s Press Release. For more information on the FRSA, go to the Summary of the FRSA and the Rail Whistleblower Library.