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Recent Whistleblower Decision Determines That Absence For Non-Work Related Medical Reasons Is A Protected Activity Under The FRSA

On February 10, 2012, Administrative Law Judge, Theresa C. Timlin, of the U.S. Department of Labor, issued an Order directing the Port Authority Trans-Hudson Corporation (PATH) to pay a Railroader back pay for a suspension imposed because he was absent from work pursuant to orders from his treating doctor for a non-work related injury.

First, a little bit about the facts leading up to Judge Timlin’s involvement in the case.

On June 22, 2008, the aggrieved Railroader sustained a low back injury while he was lifting boxes at his home. The next morning, he was evaluated by his family doctor and taken off work for a week. The Railroader immediately told his supervisor of his doctor’s orders. The Railroad then referred the Railroader to its own doctor who concurred with the opinion of the Railroader’s doctor regarding his inability to work. The Railroader informed his supervisor that the Railroad’s own physician determined that he was unable to work. The Railroader was issued a disciplinary charge letter for violating the Railroad’s attendance policy. After a hearing, the charges were affirmed and the Railroader was suspended for three days.

While it is undisputed that the Federal Rail Safety Act (FRSA) prohibits the discipline of railroad employees for following the orders or a treatment plans of a treating physician for work related injuries, Judge Timlin indicated that this protection goes further and stated as follows:

“After reviewing the Act’s text and purpose, I find it clear that § 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety or railroad passengers and fellow employees. I thus find that § 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.”

In sum, while it has always been the case that a railroad violates the FRSA if it disciplines an employee for following a doctor’s orders concerning a job-related injury, it is now clear that such protection covers non-work related injuries as well.

By Matt Darby

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