It is especially important for rail workers in safety sensitive positions to know how to book off when their medical condition renders them unsafe. To quote the Chairman of the NTSB: “The public deserves alert operators. That’s not too much to ask.” Yes, but how can a rail worker protect a safety absence from discipline? Well, in Winch v. Dir, OWPC, 2018 U.S. App. LEXIS 3584 (11th Cir. 2018), the 11th Circuit Court of Appeals spells out how railroad employees can have safety absences protected by FRSA subsection (b)(1):
After careful review, we find that the ARB’s fact-specific decision was supported by substantial evidence. Like the ARB, we do not opine on whether calling in to report one’s own illness can qualify as “reporting . . . a hazardous . . . condition” under § 20109(b). Assuming for purposes of this opinion that it can, the ARB relied on substantial evidence in concluding that Winch did not actually “report . . . hazardous . . . condition” under § 20109(b)(1)(A). As the ARB noted, when Winch called in sick, he told the crew operator only his name, his identification number, and his desire to be marked off sick; he failed to list or describe any of his symptoms and how they would impact the performance of his duties. Nor did Winch otherwise put CSX on notice that he was “reporting . . . a hazardous . . . condition.” Indeed, nothing in his call indicated that he was attempting to trigger this hazardous-condition provision as opposed to simply requesting a sick day.
The take away? A railroad worker who wants a safety absence to be protected from discipline under FRSA subsection (b)(1) must:
- inform the Railroad orally and in writing that he is in an unsafe condition to perform his duties, by
- listing his symptoms and describing how they would impact the safe performance of his railroad duties, and
- if possible, backing it up with a doctor’s note confirming the symptoms and the doctor’s order not to work.
Safety absences must be protected. Here is the full text of Winch v. Dir, OWPC, 2018 U.S. App. LEXIS 3584 (11th Cir. 2018). For more on the whistleblower rights of railroad employees, go to the free Rail Whistleblower Library.