WASHINGTON — The Federal Railroad Administration has issued an interpretation of its regulations on employer harassment and intimidation of injured employees — welcome pointers to help rail workers, injured on the job, know their rights.

The interpretation focuses on situations where a carrier supervisor or other rail official accompanies an injured employee into an examination room. Specifically, the FRA has defined what actions by a carrier official constitutes harassment or intimidation calculated to discourage or prevent the reporting of an accident, incident, injury or illness.

Said the FRA:

“49 CFR Pat 225 [of its safety regulations require] each railroad to adopt and comply with a written Internal Control Plan addressing the railroad’s policies and procedures regarding accident/incident reporting.

“[The regulation] further requires that such Internal Control Plans include, at a minimum, a policy statement declaring the railroad’s commitment … to the principle, in absolute terms, that harassment or intimidation of any person that is calculated to discourage or prevent such person from receiving proper medical treatment or from reporting such accident, incident, injury or illness will not be permitted or tolerated.

“[M]any railroad employees fail to disclose their injuries to the railroad or fail to accept reportable treatment from a physician because they wish to avoid potential harassment from management or possible discipline that is sometimes associated with the reporting of such injuries.

“[S]upervisory personnel and mid level managers in some instances are urged to engage in practices which may undermine or circumvent the reporting of injuries and illnesses.

“FRA is aware of incidents in which a supervisor or other railroad official has accompanied an injured employee into an examination room, or other room in which the injured employee received medical treatment.

“Although concerns have been expressed as to the need for a railroad to determine the extent of an employee’s injuries, FRA does not believe that such concerns outweigh the potential pitfalls and problems associated with the practice of having supervisors accompany injured employees while they receive care from their physicians.

“Moreover, physicians are in the best position to evaluate the health of injured employees and the presence of a supervisor during such examinations would not, in most cases, add any value to the treatment of an employee and would, in general, be a distraction to both the employee and the physician.”

Thus, said the FRA in its interpretation of its regulations:

“Harassment and intimidation occur in violation of Section 225.33(a)(1) when a railroad supervisor accompanies an injured employee into an examination room, unless one or more [exceptions occur].”

The exceptions, said FRA, occur in “limited circumstances in which it is appropriate, and indeed preferable, for a supervisor to accompany an injured employee into an examination room … Consequently, FRA recognizes the following limited exceptions:

1. “The injured employee issues a voluntary invitation to the supervisor to accompany him or her in the examination room. The injured employee must issue this invitation freely, without coercion, duress, or intimidation. For example, an injured employee may see the attendance of a supervisor where the supervisor is a friend. This exception does not encompass invitations issued by third parties, including physicians, unless the invitations are made pursuant to the request of the injured employee.”
2. “The injured employee is unconscious or otherwise unable to effectively communicate material information to the physician and the supervisor’s input is needed to provide such material information to the physician. In these circumstances, the supervisor is assisting the injured employee in providing information to the physician to that the injured employee may receive appropriate and responsive medical treatment.”

Also, be reminded that the Rail Safety Improvement Act of 2008 provided for the following:

• If the employee is injured on the job, the employer must provide the injured employee with transportation to the nearest hospital.
• The injured employee may not demand to be taken to a more distant hospital, but the destination must be the nearest hospital and not an emergency center.
• The employer is not required to transport the injured employee via an ambulance. They may be transported via a company vehicle.
• A railroad is prohibited from disciplining, or threatening to discipline, an employee seeking medical treatment, or for following orders or a treatment plan of a treating physician.
• Employees may bring an action against the railroad, under whistleblower provisions, for any violation; and, in addition to recovering back pay and reinstatement, they may recover, separate from a FELA action, compensatory damages, attorney’s fees and punitive damages up to $250,000.
• Only the injured employee’s physician can certify when the injured employee is fit to return to work, but the railroad can then order an examination by its own physician to determine if the employee is fit, under railroad policies, to return to work, or should be kept off duty for a longer period.
• If you are involved in a critical incident, such as a highway-rail grade-crossing accident or a train striking another employee or pedestrian, you may demand to be relieved from duty for the purpose of receiving counseling. In addition, you may receive immediate relief of service for the balance of the duty tour.