Part II – Slack Action: How the FELA Can Protect You If You Contract the Coronavirus.
The railroads' refusal to undertake even the most basic safety measures is going to bunch down the consist until the slack runs out and has dangerous consequences. Railroaders will get sick. So many railroaders are asking us right now: does the FELA protect railroaders who contract the coronavirus at work?
The FELA requires proof of "slight" negligence on the part of the railroad. This includes that the railroad was aware of a dangerous condition, but failed to take reasonable steps to correct it. There can be no doubt that the railroads know about the dangers created by the coronavirus, and know about the steps that could be taken to help the problem (like sanitizing equipment). This is especially true given the petitions filed with the FRA by both SMART and the AAR.
The FELA also requires proof of something called “causation” – meaning we would have to prove that the railroad's failure to take appropriate safety measures caused you to contract coronavirus. This is difficult, but not impossible. The railroads have refused the reasonable precautions suggested by SMART as well as those being suggested by employees on the ground. We know from government officials like the CDC that those measures, if implemented, would protect employees.
First, we will need to prove that a co-worker you came in contact with at work had coronavirus before you did. Railroaders should keep track of who they work with and when, and the names of any employees who are reported to have coronavirus or coronavirus symptoms.
Second, because the coronavirus is highly infectious and transmitted in any public place, we would have to prove that you did not contract coronavirus from someplace else. The best way to prove this is by demonstrating that no one you had contact with outside of work had coronavirus. It is important to know if anyone you have been associating with outside of work ever had coronavirus. Proving you contracted coronavirus at work can also be proven by demonstrating you were protecting yourself in your daily activities outside of work – wearing a mask and gloves in public, no non-essential travel, not getting any closer than 6 feet to anyone who you do not live with, regularly washing your hands and not touching your face, and generally following the guidelines issued by the government. Following the government’s health guidelines are important not just for your safety, but for protecting your rights under the FELA. If you continue to socialize freely outside of work, we will never be able to prove where you contracted coronavirus.
If the railroads continue to refuse basic safety measures to their employees, they will reap what they sow. If you suspect you or a co-worker has contracted coronavirus at work, contact us right away. 410-769-5400, firstname.lastname@example.org