Railroad workers’ rights were setback in early 2015, when the U.S. Court of Appeals for the Third Circuit affirmed that the Federal Railroad Safety Act (“FRSA”) does not apply to off-duty injuries and/or illnesses. See - Christopher Bala v. Port Authority Trans-Hudson Corp. ("Bala Decision").
The FRSA was enacted to protect railroad workers who reported on-duty injuries from discipline, harassment and/or intimidation at work. Without the protections of the FRSA, however, the railroads can and will wreak havoc on injured or sick railroad workers who do not have on-duty injuries.
We share with you a railroader’s recent experience with his employer railroad. It reinforces the fact FELA lawyers, such as Hoey & Farina, and railroad unions are important, today more than ever, and necessary to keep fighting for and protecting railroaders’ rights.
A railroad worker went in to his doctor for a follow-up appointment /physical relating to a work injury. During that physical, the physician discovered a lump on his upper body and performed a tissue sample biopsy. Several days later, the physician advised the railroader that he needed immediate surgery to remove the lump. The worker called and informed the railroad regarding the immediate out-patient surgery which was to be performed in three days (a day after a holiday).
The railroad responded that the employee needed to change his surgery time or date because he would not be allowed to mark off that day, but must protect his afternoon yard assignment. The worker contacted his doctor, who agreed to move his surgery time to early afternoon so that the railroader would be available to work his 4 p.m. assignment.
After surgery, the railroader called the railroad to say that he had not recovered from the effects of “local anesthesia” and asked to mark off. The railroad ordered the worker to report for his job assignment immediately or face discipline for not being available for work. The worker complied with the instructions and reported for work.
When the worker reported for the job, a co-worker, unlike the railroad, recognized the safety risk to everyone. Despite jeopardizing his own employment, the co-worker refused to work with the recovering railroader. After the railroad supervisor saw that the worker was not capable of performing the job safely, he cancelled the assignment.
However, given that the railroader was relieved from the job after he had reported for work, the supervisor then ordered another physical. The worker called the railroad’s medical director regarding the matter, but was told that although the supervisor was wrong, there was nothing that could be done about it. It was a two week process - without pay - before the railroader was allowed to mark up. -- I kid you not – this really happened!
It has been eight years since Congress recognized that railroad workers needed more protections from the railroads and amended the FRSA. The railroads may have won a significant battle with the Bala decision, but the war for railroaders’ right is far from over. -- Call Hoey & Farina at 888-425-1212 with questions or comments.