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Railroad Injury Blog

The Interchange of Coronavirus, Federal Regulations, the FELA, and the FRSA – Part 1 of 3

Friday, April 10, 2020

Part I – Bad Order: the FRA is No Longer Looking Out for Your Safety, Period.

There is a mechanical defect here – a big one. As many of you may already know, the SMART Transportation Union sent an Emergency Petition to the Federal Railroad Administration – the agency whose mission is supposed to be the safe operation of trains nationwide – to address the unique safety conditions arising from the novel coronavirus (COVID-19). SMART's Emergency Petition included basic requests to impose safety standards related to: locomotive sanitation, common room sanitation, employee temperature observation, transportation to lodging facilities, how to treat employees who develop coronavirus symptoms, and a furlough recall to deal with anticipated workforce shortages.

Did the FRA grant that petition and afford workers’ these basic safety measures in these extraordinary and dangerous times? No. Instead, this Administration's FRA granted a petition from the Association of American Railroads allowing a waiver of rail safety regulations, endangering the lives of railroaders and the general public for profit. The waived safety regulations include: track inspections under Part 213, engineer qualifications on territory they are unfamiliar with, and suspending the 60-day deadline for railroads to respond to petitions to the Locomotive Engineer Review Board and the Operating Crew Review Board. None of the safety measures suggested by SMART were adopted. Somehow this Administration’s FRA deemed that suspending operational testing – where managers hide in the bushes hundreds of feet away – "is consistent with CDC guidance related to social distancing," but SMART's request for the immediate isolation of employees exhibiting coronavirus symptoms, is not. It’s outrageous!

Let your elected representatives know that an emergency like this is not the time to relax safety regulations – it simply gives the railroads that transport deadly explosive materials throughout the country permission to operate less safely at a time when the country cannot afford major rail disasters. Let them know you support the safety measures proposed by SMART. You can use this link to find out who your representatives are, and contact them.

If you suspect you or a co-worker has contracted coronavirus at work, contact us right away, we will fight for your rights under the FELA. 410-769-5400,

Attorney David Leibensperger

David Leibensperger

Vision Certification Issues For Railroad Conductors And Engineers

Thursday, March 17, 2016

I have received numerous calls recently from Railroad Engineers and Conductors from across the nation regarding certification issues, especially with regard to visual color deficiencies and visual acuity issues. It is important to understand that the Railroads are struggling with the appropriate methods with which to measure color vision deficiency and visual acuity deficiencies in field testing. If an Engineer or Conductor has failed a clinical test for color blindness or visual acuity, it is important that they understand the field testing procedures. The Federal Railroad Administration has recently issued an interpretation to clarify the provisions of its Locomotive Engineer and Conductor Qualification and Certification Regulations with respect to visual standards and field testing. Prior to undergoing field testing, it is important for Engineers and Conductors to understand this process.

Vision Certification Testing Standards

The Federal Railroad Administration has received numerous inquiries from Railroads as to how this type of testing should be conducted. In addition, my Firm has been in the process of appealing disqualifications of Engineers and Conductors to the Locomotive Engineer Review Board and the Operating Crew Review Board on behalf of clients who have either failed field testing procedures or have otherwise recently been denied re-certification because of visual impairments. The process is challenging and it important for these individuals to understand their rights with regard to this issue, since it can effectively derail their careers.

Job Function and Environment Matter

First, it is important to understand that the Railroad’s Medical Departments have significant latitude in certifying Engineers and Conductors despite visual impairments. This latitude involves conditional certification for allowing Engineers and Conductors to continue to work under certain circumstances. For example, an Engineer may be allowed to continue to work despite a color vision deficiency if the Engineer works in an area where the railroad signal aspects are positional rather than color based. Also, Conductors may be certified if they are not normally required to recognize signals during the course of their work day. More importantly, Railroads are inconsistently applying field testing procedures.

As a result of these issues, the Federal Railroad Administration has issued an interim interpretation to provide guidance to railroads as to how to properly administer a field test. It has been my experience that Railroads are inappropriately administering field tests to the detriment of long standing employees who have demonstrated the ability to work safety despite their vision deficiencies.

What Railroad Employees Should Do Prior To a Field Test

It is important for any employees facing a field test because of a visual deficiency to contact experienced Railroad Counsel to provide guidance in this area. If faced with an inappropriate field test, the individual should engage their union representation to help ensure that the field test is appropriately and fairly administered. In addition, if the employee does not pass the field test, and is ultimately denied re-certification, there are procedures that need to be followed and time limits regarding an appeal to the Locomotive Engineer Review Board or the Operating Crew Review Board in order to preserve their rights to re-certification. My office is available to assist any railroad union employee in this regard.

Ready for The Next Step?

If you are an employee working for a railroad and are concerned about the outcome and administration of a pending field test for your visual acuity please contact Matt Darby at 410-769-5400 or toll free at 800-248-3352.

By Matt Darby

FRA Releases New Smartphone App

Tuesday, June 18, 2013

The Federal Railroad Administration (FRA) announced today that it has released a new smartphone application, the Rail Crossing Locator. The FRA’s press release indicates that the app “provides the public with easy access to safety informaton about the nation’s more than 200,000 highway-rail grade crossings.”

The press relases goes on to state:

“The Rail Crossing Locator app works by prompting uses to enter a specific location, which then allows them to locate highway-rail grade crossings in their area and retrieve important information, such as the physical characteristcs of a crossing and the type of traffic control devices used. The app allows users to report information about grade crossings to the FRA to ensure the most accurate and up-to-date information is available.” The app is free and can be found at the Apple App Store.

A link to the press release can be found here.

By Matt Darby

Connecticut Post Article Points Out Problems With FRA

Friday, May 24, 2013

Yesterday, the Connecticut Post published an article that indicated that a recent audit of the Federal Rail Administration (FRA) was critical of its implementation of the Rail Safety Improvement Act (RSIA). The article stated that “A recent audit by the Office of Inspector General of the FRA response to the the mandate found substantial delays in implementing the required priorities, including those related to safety and track inspection.” The RSIA was passed by Congress in 2008. It directs the FRA to implement new safety rules and regulations concerning track inspection, hours of service and positive train control (PTC).

A link to the Connecticut Post article is here.

A link to the RSIA is here.

By Matt Darby

Rail Inspected Two Days Prior To Metro-North Crash

Thursday, May 23, 2013

The Connecticut Post reported yesterday that the stretch of rail involved in last Friday’s Metro-North train collision had been inspected two days prior. This information was obtained from Robert Kulat, a spokesman for the Federal Rail Administration (FRA). The article goes on to indicate that the National Transportation Safety Board (NTSB) investigation is focused on two sections of rail found at the scene of the collision that appear to have broken apart at the joint assembly that holds them together.

Yesterday’s article can be found here.

By Matt Darby

FRA Issues Switching Operations Safety Advisory

Thursday, May 09, 2013

On May 3, 2013, the Federal Rail Administration (FRA) issued a safety advisory concerning the safety hazards associated with flat switching operations. Flat switching is performed by one of two methods – kicking or shoving. A car is kicked when it is uncoupled from the switching locomotive while it is motion allowing the car to roll freely and couple upon impact with the cars of the new train. When a car is shoved, it is not uncoupled from the switiching locomotive until it is secured to the new train. The FRA press release regarding the new safety advisory indicated that since 2009, six railroad employees have died as a result of switching operations. The press release went on to state that “During kicking operations, employees are at greater risk if the rail car doesn’t couple securely with other rail cars already resting on the destination track.”

A link the FRA press release and the safety advisory can be found here.

By Matt Darby

Whole Body Vibration

Friday, April 19, 2013

Studies have linked injuries suffered by locomotive engineers and those who routinely ride within locomotive cabs to whole-body vibration exposure. A study in 2002 determined that long term vibration exposure posed a health and safety risk to engineers in the form of accelerated spinal degeneration, disk herniation and sciatica. Other studies have linked neck and shoulder injuries to long term exposure to the vibration produced by locomotives.

The Railroads have been aware of the health issues associated with vibration and poorly designed and maintained locomotive cab seats since 1972. In that year, a study entitled “Human Factors Survey of Locomotive Cabs” was released on behalf of the Federal Rail Administration (“FRA”). That study indicated that the seats being used in a number of locomotives cabs were insufficient and that major design changes were required to provide comfort and reduce fatigue. Concerning cab vibration, the report indicated “The conditions of vibration, to which the engineer is exposed, should be measured as a first step in surveying the environmental conditions in the cab.”

In 1995, the FRA issued a report entitled “Human Factors Guidelines for the Evaluation of the Locomotive Cab” that set-forth a laundry list of recommendations that would improve the design of locomotive cab seats. With regard to the issue of vibration, the report indicated as follows with regard to vibration “Muscles are used to overcome vibration effects on the body. This can produce fatigue and overuse syndromes, depending on the effort required and length of exposure.” Despite being aware of this information, the Railroads continued to use poorly designed and maintained seats in their locomotive cabs. The Railroads also failed to make any effort to test their locomotives for cab vibration. These failures have put their employees at an increased risk for the development of serious neck, back and shoulder injuries.

By Matt Darby

FRA Provides Grant To Study Return Of Amtrak Passenger Service Between Birmingham, Montgomery And Mobile, Alabama

Friday, August 17, 2012

On August 16, 2012, the Federal Rail Administration (FRA) issued a news release indicating that had obligated $100,000.00 to the Alabama Department of Economic and Community Affairs to study the restoration of Amtrak passenger rail service that would connect the existing portion of Amtrak’s Crescent Route at Birmingham to a possible future route between Mobile and Florida.

U.S. Transportation Secretary Ray LaHood was quoted in the news release as saying “President Obama’s support for an America built to last is putting people back to work across the country building railroads, roads, bridges and other projects that will mean better, safer transportation and strong economic foundation for years to come.”

The full news release can be found here.

By Matt Darby

OSHA And FRA Join Forces To Provide Whistleblower Protection

Tuesday, July 17, 2012

On July 16, 2012, the Occupational Safety and Health Administration (OSHA) announced that it has signed an agreement with the Federal Rail Administration (FRA) to “facilitate coordination and cooperation between agencies regarding enforcement of the Federal Railroad Safety Act’s whistleblower provision.” OSHA’s news release regarding the agreement went on to state that “The safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation", said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA welcomes the opportunity to work with the FRA to protect these rights and make our nation’s railroads a safer place to work”.

Highlighting the Railroads’ widespread and ongoing acts of discrimination, the press release indicated that whistleblower complaints were on the rise and that “Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the FRSA, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.”

The agreement provides that the FRA will refer whistleblower complainants to OSHA. In return, OSHA will provide the FRA with copies of the complaints it receives and findings and preliminary orders that it issues. In addition, OSHA and the FRA “will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.” The Memorandum of Agreement (MOA) between the two states that the “FRA will also maintain a database of the complaints it receives from OSHA to monitor potential safety problem areas and issues in which FRA may be able to assist OSHA.”

It seems quite clear that despite OSHA’s ongoing work to eliminate discrimination under the FRSA, it needed a strong partner in those efforts. Hopefully, the agreement to share information and resources between OSHA and the FRA will make the Railroads think twice before disciplining its workers for illegal reasons.

A copy of the OSHA news release and Memorandum of Agreement can be found here.

By Matt Darby

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