Under the FRSA, it is protected activity to report a “hazardous safety condition.” Whether a worker’s own illness or personal impairment is such a hazardous condition has been a matter of dispute. But now the Administrative Review Board confirms that a rail worker’s illness can constitute a hazardous condition, the reporting of which cannot be used to discipline the worker. The case is Ingrodi v. CSX Transportation, Inc., and builds on the ARB’s earlier decision in Cieslicki v. Soo Line Railroad Co. ARB No. 2019-0065 (ARB June 4, 2020).
In Cieslicki, the worker legally consumed alcohol before being unexpectedly called into duty. When he explained he had consumed alcohol and therefore could not work, the Railroad terminated his employment. The ARB held that a “hazardous safety or security condition” may result from an employee working in an impaired or diminished physical state, and that the FRSA “does not require that a condition be work-related or state that the condition cannot relate to an employee’s physical condition.” The ARB explained the phrase “hazardous safety or security condition” is broad, and does not require that a condition be “work-related,” limit protection to conditions related exclusively to tracks or equipment, or state that the condition cannot relate to an employee’s personal physical condition. The ARB stressed the primary purpose of the FRSA’s whistleblower protection is to promote safety, and the goal of ensuring safety applies equally to whether a hazardous condition arises from equipment or from the impaired or diminished physical condition of the person operating it.
In Ingrodi, the worker was terminated after calling off sick due to a personal, non work-related illness. The ARB held:
We reiterate our conclusion in Cieslicki that Section 20109(b)(1) of the FRSA “does not require that a condition be ‘work-related’ or state that the condition cannot relate to an employee’s physical condition.” Consistent with this conclusion, we hold that an employee impaired by an illness can create a hazardous safety or security condition under the FRSA. Depending on the circumstances of the particular case, a worker impaired by illness, like a worker impaired by alcohol or like a faulty or unsafe piece of equipment or line of track, could present a danger or threat of serious harm or injury to the worker, to his or her colleagues, and to the public. To hold otherwise could implicitly incentivize impaired employees to work despite the risk of causing great harm or injury to themselves or those around them, for fear of discipline. In light of Section 20109(b)(1)’s broad and general language, the over arching purposes of the FRSA, and our precedent in the same and analogous contexts, we hold that reporting, or refusing to work because of, a personal, non-work related illness may constitute protected activity under Section 20109(b)(1) of the FRSA.
The ARB’s rulings are binding on OSHA and Administrative Law Judges. However, it is important to keep two points in mind. First, when declining to work due to a personal illness or medical condition, it is critical the worker tell the railroad that as a result he or she is unable to safely perform the duties of the job (ideally with a doctor’s note in support). Second, the ARB noted an impaired worker still may be disciplined if the impairment is the result of conduct that is illegal or in violation of FRA regulations.