A recent district court case vindicates OSHA’s position that a railroad’s bad faith refusal to allow an employee to return to work is an adverse action violating Federal Rail Safety Act Section 20109.
This is from OSHA’s Summary explaining its Final Rules for FRSA cases:
OSHA believes that the safe-harbor in subsection (c)(2) requires that the railroad’s refusal to allow an employee to return to work be in good faith. A retaliatory refusal to permit an employee to return to work cannot properly be regarded as made “pursuant to” FRA’s or the carrier’s own medical standards for fitness for duty under the statute. Any other interpretation of the provision would permit a railroad carrier to refuse to allow an employee to return to work in retaliation against the employee for reporting the injury (which would violate (a)(4)) or as a means for extending retaliatory discipline prohibited by (c)(2). Evidence that a refusal to allow an employee to return to work is based on carrier standards that are not recorded in the carrier’s official policies, not uniformly applied, or not medically reasonable may help to demonstrate that the refusal is due not to a legitimate safety concern of the railroad carrier by rather is motivated by retaliatory intent.
Fast forward to the federal court decision in Rader v. Norfolk Southern Railway Company, where supervisors delayed an injured employee’s return to work for 43 days after the employee’s treating doctor and the railroad medical department cleared him to return to work. The district judge held a reasonable jury could find such a bad faith delay to be in “reckless or callous disregard” of the employee’s rights, requiring an award of punitive damages.
Here is the full text of Rader v. Norfolk Southern Railway Company. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.