Earlier this year, the Department of Labor affirmed an Administrative Law Judge’s (ALJ) 2014 decision obtained by our law firm extending protections under the employee protection provisions of the Federal Rail Safety Act (Whistleblower Act). This Act protects employees from retaliation for marking off work due to an off-duty injury or illness. This case was tried to an ALJ by HARRINGTON, THOMPSON attorney Robert B. Thompson and then subsequently briefed before the Department of Labor by Robert E. Harrington, III.
Following the decision, which favored our client, the railroad appealed the case to the federal circuit court for the Sixth Circuit in Cincinnati, Ohio, one step below the United States Supreme Court. O ral arguments are scheduled for October 11, 2017.
About the Railroad Whistleblower Case
The case was fully briefed by the parties in summer of 2017 with the AAR filing briefs in support of the railroad’s position and nearly every railroad employee union in the United States filing briefs in support of the employee.
The case is set for oral argument before the Court on October 11, 2017 where HARRINGTON, THOMPSON attorneys Bob Thompson and Bob Harrington, III will appear. Prior to this case, most courts had limited FRSA retaliation protection extending only to injuries or illnesses that originate while on-duty.
Facts of the Case
A railroad locomotive road engineer was terminated in 2012 after he marked off sick due to an illness. The illness did not originate at work or on-duty. The road engineer suffered from a chronic condition that, when symptomatic, required treatment by use of prescription medication. Prescription medication was expressly prohibited by the railroad while on-duty. As such, the employee called in sick on four occasions during one calendar month marked and was subsequently noticed for investigation hearing for excessive absenteeism.
Significantly , the railroad had no written rules on what constituted excessive absenteeism; administration of any unwritten policy was a sole discretion of the terminal superintendent.
At the disciplinary hearing, the employee produced doctor’s notes which covered the times he was sick and expressly stated that he could not work due to the illness. After the disciplinary hearing the terminal superintendent found the employee in violation of his personal unwritten attendance policy and levied the penalty of job termination.
The Federal Railroad Safety Act (FRSA) Trial
The employee, with the assistance of the aforementioned attorneys at HARRINGTON, THOMPSON, filed a claim with OSHA under FRSA alleging the termination was illegal because FRSA protected his conduct of marking off sick at the direction of his treating physician.
At the FRSA trial before the ALJ, the treating physician (a prior company doctor for the railroad) testified that the employee working sick under the influence of prescription medication was a formula for disaster and presented a real safety hazard to fellow employees and the general public. The physician stated under oath he would have been a fool to allow the employee to operate freight trains in such an impaired state and thus instructed him not to work when impaired and under the influence of his prescribed medication.
T he railroad did not dispute that the employee was legitimately sick and acknowledged that the employee produced doctor notes verifying his illness and direction not to work. The railroad simply contended it was within their legal right to terminate employees that could not regularly work in order to properly staff trains. The railroad’s lawyers argued that FRSA employee protections only extend to those infirmities an employee marked off for related to on-duty illness or injury.
HARRINGTON, THOMPSON attorneys countered that protecting impaired workers from marking up was one of the exact situations Congress intended to stop in enacting the new employee protection provisions of FRSA in 2007. An employee who fears losing his/her job and sole source of income will choose to work impaired, thus putting the safety of employees and the public at risk. No employee should have to choose between safety and their jobs. Congress wanted to protect these employees from management retaliation and discipline.
Employees who are legitimately sick and told not to work at the direction of their physician should be protected from retaliation and discipline for excessive absenteeism. Railroads have several non-disciplinary options available to them in order to manage their workforce, such as placing sick employees on medical leave when necessary and filling their active duty position on the seniority roster with the next employee in line. Termination of employment as a threat only encourages employees to work sick in fear of losing their job if they call off.
ALJ Determines Railroad Worker Was Discriminated Against
Subsequent to a full two-day hearing on the issue and several hundred pages of legal briefing on the subject, the ALJ determined that the employee protections of the FRSA under Section 20109(c)(2) which generally state the railroad cannot discriminate against an employee for following the orders or treatment plan of a treating physician covered not only those illnesses related to work but also those originating outside the workplace like the engineer’s illnesses in this case.
The ALJ held that the railroad retaliated against the employee for marking off sick which was in violation of FRSA. He awarded the employee all of his back pay, removed all discipline, and awarded compensatory damages for the suffering he endured in the process and all attorney fees.
The Railroad’s Appeal
The railroad appealed the case to highest level of the Department of Labor, which earlier this year affirmed the ALJ decision. At every step the Department of Labor has sided with the employee, extending protection from absenteeism discipline related to all illnesses at the direction of a treating doctor, whether such an injury or illness originates at the work place or not.
The railroad has now appealed this fight to the Sixth Circuit Court of Appeals with the potential next step the United States Supreme Court.
The attorneys at HARRINGTON, THOMPSON have continued this fight on behalf of this employee to vindicate his rights. We will continue to fight this battle until all legal avenues available in our search for justice is exhausted.
Railroad Injury and FRSA Lawyers
If you have been wronged by your railroad employer and feel you may have a Whistle- blower case, please call our toll-free number at 800-828-5828 for a free consultation at any time.