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OSHA: FRSA Rail Whistleblower Protection Applies to Off-Duty Injuries

Sat. October 05, 2013

The Administrative Review Board of the Department of Labor decisively upheld an OSHA Administrative Law Judge's decision that the Federal Rail Safety Act (FRSA) protects rail workers from being disciplined when they follow a physician's treatment plan for off-duty injuries.

The case involved a signalman who was assessed a six day suspension for violating PATH's no-fault attendance policy.  The signalman had suffered an on the job back injury in 2006, and reinjured it at work in April 2008. In May 2008, he injured it again at home. His doctor said he was unable to work for at least 3 months, and the PATH doctor concurred he was unfit for duty.

PATH brought him up on charges for violating its no-fault absenteeism policy, arguing that since the latest injury occurred at home, it was not protected activity under FRSA.

The decision by the Department of Labor Administrative Appeals Judge found that FRSA "protects railroad employees from discipline for following a physician's orders for off-duty injuries."

Although the issue was not directly before the Appeals Judge, language in the decision suggests that FRSA also protects employees who are off sick and are following the treatment plan of a physician. A case involving that issue is currently on appeal. Until it is decided, TCU recommends that any rail employee threatened with discipline for absences due to illness and where the absences involved are authorized by a treating physician should file a complaint with OSHA.

“This is great news for railroad workers across the country,” said TCU President Bob Scardelletti. “This decision lets railroad workers know that their job will be protected when injured, whether on or off the job.”

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