Executive Summary: In a case of first impression with far-reaching implications for the railroad industry, the Third Circuit has held that the provision of the Federal Railroad Safety Act (FRSA) prohibiting discipline of employees for "following orders or a treatment plan of a treating physician" does not protect employees who were injured while off-duty. Only absences triggered by injuries that were incurred while on-duty are covered by FRSA's anti-retaliation provision. Port Authority Trans-Hudson Corp. v. Dept. of Labor, 2015 WL 178459 (3rd Cir. Jan. 15, 2015).
Christopher Bala is a signal repairman employed by Port Authority Trans-Hudson (PATH). Under his union's contract with PATH, Bala was entitled to 12.5 paid holidays and 23 paid vacation days per year. In addition to that paid leave, Bala took more than 600 sick and personal days from 1990 through 2008. In 2007 alone, Bala took 82 days of sick leave, compared to the average of 17 sick days taken by his fellow signalmen. As a result of these absences, PATH issued numerous warnings to Bala.
On June 22, 2008, Bala injured his back while moving boxes at his home. Bala's physician ordered him off work through July 2008. Shortly thereafter, PATH held an internal hearing and suspended Bala without pay for violating PATH's attendance policy, based on the sum total of Bala's absences. Bala filed a complaint with the United States Department of Labor (DOL) alleging that the suspension was retaliation for taking sick leave protected by FRSA. A DOL administrative law judge held that PATH violated the FRSA by disciplining Bala for following his physician's orders not to work after his off-duty injury. The DOL's Administrative Review Board (ARB) upheld that determination, and PATH appealed the ARB's decision.
The Third Circuit's Decision
The Rail Safety Improvement Act of 2008 amended the FRSA by adding a new subsection (c) to 49 U.S.C. § 20109. Section 20109(c) contains a direct worker safety provision (subsection (c)(1)) and an anti-retaliation provision (subsection (c)(2)). The worker safety provision prohibits a railroad carrier from denying, delaying, or interfering with the medical or first aid treatment of "an employee who is injured during the course of employment." The anti-retaliation provision states that a railroad carrier "may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician," but does not explicitly limit its coverage to injuries incurred "during the course of employment."
PATH argued that the "treatment" in the anti-retaliation provision refers back to the "treatment" in the safety provision, thereby incorporating the "during the course of employment" limitation. The ARB held, and DOL argued to the Third Circuit, that the two paragraphs are distinct and the absence of the limitation in subsection (c)(2) implies that Congress deliberately chose to extend the protections to employees who sustain off-duty injuries.
The Third Circuit agreed with PATH and held that the "during the course of employment" limitation applies to the anti-retaliation provision as well. Otherwise, the court noted, the statute would confer indefinite sick leave on all employees who could obtain a physician's note excusing them from work. The plain text of the worker safety provision makes clear that Congress intended to ensure that railroad workers are able to obtain medical attention for injuries sustained while on duty. The anti-retaliation provision furthers that objective by encouraging employees to seek medical attention for on-duty injuries without facing reprisal. According to the court, interpreting the anti-retaliation provision as DOL argued would not further the worker safety provision, which is explicitly limited to on-duty injuries. As such, the court remanded the matter with instructions that the proceedings against PATH be dismissed.
Employers' Bottom Line:
The ARB's ruling, if sustained, would have been extremely problematic for railroads as it would have eviscerated their ability to apply their absence programs to employees injured off the job. The Third Circuit's decision reversing the ARB is well-reasoned and sensible. As of now, the precedential effect of this ruling is limited to the courts within the Third Circuit, and no other circuit has addressed this issue. We will continue to keep you apprised of the latest developments on this matter. Of course, a railroad may not discipline an employee for following a doctor's orders or a treatment plan associated with an injury incurred on the job.