Title 49 Code of Federal Regulations (CFR) Part 225 requires railroad carriers to report all employee injuries that fall under the regulations to ensure FRA is provided with accurate information concerning the hazards and risks that exist on the Nation’s railroads. Part 225 also requires all railroads to abide by their Internal Control Plans, including the railroad’s commitment to complete and accurate reporting of all accidents, incidents, injuries, and occupational illnesses arising from the operation of the railroad. Railroads further must commit to the principle that, in absolute terms, all harassment or intimidation of any employee that is calculated to discourage or prevent the employee from receiving proper medical treatment or from repo1ting such accident, incident, injury, or illness will not be permitted tolerated and will result in some stated disciplinary action against any employee, supervisor, manager, or officer of the railroad carrier committing such harassment or intimidation. See 49 CFR § 225.33(a)(1).
The employee protections in 49 U.S.C. § 20109, enforced by OSHA, play an integral role in safeguarding the accuracy of the accident and safety incident reporting to FRA by providing protection against retaliation for employees who report work-related injuries and illnesses, accidents, safety incidents, and hazards to their railroad carrier or the government. The protections in 49 U.S.C. § 20109 prohibit railroads from discriminating against an employee for reporting a work-related injury or illness or disciplining or threatening to discipline an employee for seeking medical treatment or following the treatment plan of a treating physician for a work-related injury, and prohibit a railroad carrier from denying, delaying, or interfering with medical or first aid treatment of an employee injured during the course of employment. Separately, OSHA enforces a provision in its recordkeeping regulations, 29 C.F.R. § 1904.35(b)(1)(iv), that prohibits employers from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.
However, over the past several years, OSHA and FRA continue to see complaints from railroad employees stating that they have experienced retaliation, often in the form of discipline or threats of discipline, by supervisors and managers for reporting a work-related injury or illness or proper medical treatment for a work-related injury. FRA and OSHA are concerned that, if employees fear discipline and do not report an injury or do not seek the proper medical treatment, we all lose the opportunity to determine the root cause and severity of the injury, and thus the ability to create federal laws and regulations that best prevent injuries and create a safer work environment. While consistent enforcement of legitimate work rules (whether or not an injury or illness is reported) can be an important part of a railroad safety program, employee discipline used disproportionately or pretextually against injured employees is not. Such discipline may reduce the number of injuries that are reported to FRA and OSHA, but it will not ultimately succeed in reducing the actual occurrence of injuries.
SAFTENG members can see the original memo sent to a Class 1 railroad in December…
