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Railroad Injury Blog

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 2 of 3

Wednesday, March 27, 2019

Part 2

As we discussed in Part 1, it should be obvious that the FRSA should and does protect railroad employees who follow their doctor’s orders for non-work related injuries, including time off work. That’s the safe thing to do for the employees and the public, and subsection (c)(2) of the FRSA seems clear on its face.

Well along comes the United States Court of Appeals for the Third Circuit. This is the federal appeals court that has jurisdiction over the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. In 2015, in a case sometimes referred to as Bala, and othertimes referred to as PATH, the Third Circuit took away the right of some injured railroad workers to follow their doctors’ treatment plans.

The Third Circuit held that injuries must be work-related in order to be covered by subsection (c)(2) of the FRSA. You can read subsection (c)(2) for yourself, it doesn’t say anything about a requirement than an injury be work related: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…” But here is what the court said: “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation, even though no such limitation appears on the face of the statute. And if a work-related limitation must be applied to subsection (b)(1)(A), it would be consistent to also apply a work-related limitation to subsection (c)(2).” They even admitted the statute does not have a work-related requirement! The decision of the Third Circuit was that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

Well then, everybody’s screwed, and no one who is ill or injured outside of work is protected – right? Wrong. We’ll see what went right in Part 3.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty

Friday, March 22, 2019

Part 1

It seems pretty obvious, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the law should protect you for following your doctor’s orders. A common part of a doctor’s medical treatment plan for someone with a serious injury, is to take them out of work. As anyone who works for a railroad knows, railroads can have harsh and punitive attendance policies. If you miss too much work, no matter the reason, the railroad may be looking to discipline you, or even terminate you.

But attendance-related discipline for people who are seriously ill or injured outside of work is wrong. Employees should be able to follow a doctor’s order not to work And again, the reason seems pretty obvious, because the safety of railroad employees, rail passengers, and those living and working near railroad tracks and yards, should be more important than forcing an ill or injured employee to come to work, just so he or she can avoid attendance-related discipline. Without legal protection, it’s clear what will happen – injured and ill employees will report to work to avoid attendance discipline, and endanger themselves and the public.

It would also seem pretty obvious that a law like the Federal Rail Safety Act (FRSA) should protect employees with non-work related medical conditions. After all, the stated purpose of the FRSA is, “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” And subsection (c)(2) of the FRSA seems to do just that: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…”

Well then, the law does what it’s supposed to do and everyone’s covered for their non-work related medical conditions – right? Wrong. We’ll see what went awry in Part 2.

Maryland Railroads Place Profits Over Public Safety

Tuesday, March 12, 2019

Railroads shamelessly place profits over the safety of their employees on a routine basis, as evidenced by CSX Transportation, Inc.'s rollback of time-tested safety measures such as three-step protection, the mandatory use of brake sticks and not requiring their employees to get on and off moving railroad equipment. The railroad industry’s lack of a strong safety culture has now spilled over to endanger the public at large.

The Maryland General Assembly is currently considering legislation (HB66/SB252) that would require that certain freight trains traveling through Maryland continue to be crewed by at least two persons. The safety advantages are clear: if one crew member suffers a debilitating health condition, the other crew member could prevent a disaster by stopping the train; if an emergency occurs and the train derails or a hazmat car is leaking, the second crewmember can assist in averting disaster and help direct first responders; and if a freight train strikes a motor vehicle at one of Maryland's many grade crossings, the second crewmember would be present to potentially save the lives of a Maryland family trapped in the vehicle. The scenarios are endless – a second crewmember is critical to protect the safety of the public. Many of these freight trains pass through our communities at all hours of the day and night. We need to protect the families in those communities.

How do the freight railroads that operate in Maryland respond? In a recent hearing before the House of Delegates, representatives of freight railroads that operate in Maryland blatantly threatened to pass the cost of continuing to operate with a second crewmember to the public to the tune of $5.1 million by increasing the costs it charges the Maryland commuter rail system to operate on its tracks – a totally unrelated operation. Fortunately, last year the General Assembly did not bow to such threats and the legislation passed with broad support. Unfortunately, the legislation was vetoed by the Governor. This year, we hope that the Governor signs this legislation or the General Assembly overrides any veto. The railroads should not be able to hold the citizens of Maryland hostage with financial threats.

How can we help? Let's contact our legislative representatives and the Governor's office and tell them that the safety of our communities is more important than the profits of freight railroads.

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