Every day, the operations of our nation’s railroads place at risk the safety of countless passengers, employees, drivers at crossings, contractors along the tracks, and the homes, schools, and work places in communities through which trains carry toxic and explosive materials. If a railroad worker is suffering from a medical condition rendering him fatigued, unable to be alert and attentive, or otherwise unable to perform his tasks safely, that worker is a safety hazard to himself, his coworkers, and the public.

And in fact every railroad has policies and rules mandating that employees only perform their tasks if they are fit, rested, attentive, and capable of performing their duties safely. Every railroad has variations on such rules as: “Safety is the most important factor in the performance of duties.” “In case of doubt, take the safe course.” Such rules are especially applicable to “safety-related railroad employees” whose work involves maintenance of way, train operations, maintenance of locomotives and cars, dispatching, signal work, and Hours of Service laws.

No one wants railroad workers to place the safety of themselves, their co-workers, and the public at risk by reporting to work in a medically unfit condition. Yet, in the absence of protection from discipline under their railroad’s attendance policy, that is precisely what workers are forced to do.

The purpose of the FRSA is to “promote safety in every area of railroad operations and reduce railroad related accidents and incidents.” And despite the 3rd Circuit’s misguided narrowing of FRSA subsection (c)(2)’s scope to work related injuries, the FRSA still protects employees who take the safe action of not working in a medically unfit condition.

Subsection (b)(1)(A) prohibits railroads from disciplining employees “for reporting, in good faith, a hazardous safety or security condition.” That protected activity of reporting a safety hazard is broad and unlimited. It is not limited to on-duty injuries, and applies to any work related safety hazard. Even the 3rd Circuit’s Bala Decision acknowledges subsection (b)(1)A) protects the reporting of any safety hazards related to railroad work.

The inability of an employee to safely perform his railroad duties is a safety hazard directly related to his work. A railroad employee who is medically unfit to perform his duties is a hazard to himself and others. And for such an impaired worker to go to work would violate the railroad’s own safety rules.

When employees mark off from work, railroads require them to report the reason. When an employee’s doctor confirms it would be a safety hazard for the employee to go to work, the employee’s act of reporting the reason for the absence is also the act of reporting a safety hazard. Indeed, the reporting of the reason for absence necessitates the reporting of the safety hazard. The two actions are one and the same, inextricably intertwined.

Under the FRSA, “the protected activity and the adverse action are inextricably intertwined if the basis for the adverse action cannot be explained without discussing the protected activity.” Here, the basis for the discipline (namely the absence from work) cannot be explained without discussing the protected activity of reporting a safety hazard. Why? Because the employee is reporting a safety hazard when he gives the reason for his absence.

The railroad will argue it only disciplines for the absence, not for reporting the safety hazard. But the employee will counter that, without the safety hazard identified by the treating doctor, there would have been no absence to discipline. In other words, in the absence of the safety hazard created by the employee’s impaired condition, there would have been no absence for the railroad to discipline.

In order to qualify for the protection of subsection (b)(1)(A), an employee: first, must have confirmation from his doctor that his medical condition or treatment (e.g., prescribing the use of a strong pain medication) renders him medically unfit to safely perform his job duties; and second, must report that safety hazard to the railroad as the reason for his marking off from work.

For the future guidance of employees, here is a check list for how to invoke subsection (b)(1)(A)’s protection from attendance absence discipline:

The employee should:

1. Explain to his doctor what his railroad job involves (e.g. working on or around heavy machinery)

2. Ask the doctor if his condition, treatment, or medications would place him, his coworkers, or the public at risk if he attempted to perform his job duties

3. If the doctor confirms in writing it would be unsafe for the employee to attempt to work, then

4. The employee contacts the railroad to report the reason he is marking off from work is the safety hazard confirmed by his doctor

It is a law of nature that the force of flowing water will not be denied. And just as the current in a stream will immediately flow around a foreign object thrown into its bed, the flow of medical note attendance discipline claims will continue under FRSA subsection (b)(1)(A) despite the 3rd Circuit’s Bala Decision.