Final OSHA Whistleblower Protection Rule For Members Employed In Rail and Transit

 
The following is a report from the Transportation Trades Department (TTD) of the AFL-CIO on changes made by OSHA to the “Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety Act.  
 
Whistleblower Protections for Medical Issues
SMART, the Transportation Trades Department and all of rail labor urged OSHA to reverse its decision to not consider section 20109(c)(1) of the Federal Railroad Safety Act (FRSA), which prohibits carriers from taking actions to deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment, a whistleblower provision. Labor Unions argued that OSHA had misinterpreted the statute and further that it would be illogical to prohibit a rail carrier from disciplining an employee for requesting medical treatment, but not to prohibit the carrier from denying, delaying or interfering with treatment. In response, OSHA reversed their decision, and a violation may be processed under whistleblower procedures.
 
Multiple Claims
The election of remedies provisions of the National Transit Systems Security Act (NTSSA) and FRSA each provide that an employee may not seek protection under those respective provisions and another provision of law for the same allegedly unlawful act of the employer. TTD commented that employees must have the right to seek relief under the whistleblower provisions of NTSSA and FRSA as well as their collective bargaining agreements and requested that OSHA adopt this interpretation. In response, OSHA noted that prior cases history (Koger v. Norfolk Southern Railway Co. and Mercier v. Union Pacific Railroad) permits a whistleblowers claim to proceed regardless of an employee’s pursuit of a grievance or arbitration under their collective bargaining agreement, and that this represents the current interpretation.
 
Similarly, Rail Labor requested that OSHA interpret the election of remedies provision of FRSA as not barring an employee from also pursuing a FELA claim. OSHA declined to make any changes to the rule, but stated that the provision generally would not bar a complainant from filing both claims. Because an FRSA claim would be seeking reinstatement, back pay, and damages resulting from an act of retaliation, whereas a FELA claim would be seeking damages from a workplace injury, the claims generally would not represent seeking protection for the same allegedly unlawful act of the railroad carrier. OSHA notes that employees routinely pursue a FRSA claim and a FELA claim concurrently in district court.
 
Definitions
TTD commented that OSHA should redefine “public transportation agency” and “railroad carrier” to include as covered employers owners, contractors and sub-contractors. Similarly, Rail Labor commented that OSHA should clarify coverage over joint employers, as current text does not include retaliation by owners who are not operators. OSHA responded that under NTSSA, a covered employer is a ‘‘public transportation agency,’’ defined as a publicly owned operator of public transportation. Under FRSA, a covered employer is a ‘‘railroad carrier”, defined as a person providing railroad transportation, and therefore the statute contains the specific definitions. OSHA declined to make changes. Finally, OSHA notes that NTSSA and FRSA specifically prohibit contractors and subcontractors from retaliation.
 
Medical Attention
TTD and Rail Labor commented on the exception to FRSA’s prompt medical attention provision in 49 U.S.C. 20109(c)(2) which permits a railroad carrier to refuse to allow an employee to return to work if the carrier believes this would violate safety standards.  Both TTD and Rail Labor argued that this exception would allow carriers to abuse groundless medical refusals as a form of retaliation. TTD and Rail Labor asked OSHA to include a statement in the regulation that a railroad carrier’s refusal must be done in good faith and with a reasonable basis of medical fact, and that if the carrier is relying on their own standards, that these standards be established in official policy, medically reasonable, and uniformly applied.  In response, OSHA declined to make changes, but stated that this represented a legitimate concern. OSHA stated that it believes that the safe harbor in 49 U.S.C. 20109(c)(2) requires the employers refusal to allow an employee to return to work be in good faith.
 
Settlements
Rail Labor requested modification of section 1982.111(d) of the rule to clarify how a settlement will affect other pending cases and other parties involved in a particular case, as employees may be pursuing multiple claims. OSHA declined to make this change, stating that it does not believe that any change in the procedures is necessary to accommodate this possibility. OSHA further states that both NTSSA and FRSA provide that a proceeding before the agency may be terminated on the basis of a settlement entered into by the Secretary, the complainant, and the respondent.
 
Enforcement of Orders
FRSA provides that if an individual does not comply with an order from the Secretary of Labor pursuant to the procedures in section 49 U.S.C. 42121(b), the Secretary may bring a civil action to enforce the order a district court. Similarly, NTSSA gives district courts authority to enforce orders issued by the Secretary., OSHA interprets the statute as not providing for an individual to bring an action to enforce an order themselves.
 
Rail Labor commented disagreeing with OSHA’s interpretation that only the Secretary of Labor may bring an action to enforce an order, disallowing the person on whose behalf an order was issued to do so. Rail Labor states that if OSHA’s interpretation is correct, OSHA would have unlimited discretion to enforce an order. Rail Labor asked that the section be revised to read that the Secretary will, in all but the most extraordinary circumstances, enforce an order.  OSHA declined to make that change, calling any further explanation of when the Secretary may bring an action unnecessary.
 
Special Circumstance Waivers
The section entitled “Special Circumstances; Waiver of Rules” provides that, in circumstances not contemplated by the provisions of the rule, or for good cause, the Administrative Law Judge (ALJ) or the Administrative Review Board (ARB) may, upon application and notice to the parties, waive procedural provisions of the rule. For example, an ALJ may waive a missed filing date requirement if he or she believes there is good cause to do so. Rail Labor suggested that this will result in due process concerns and should be deleted. OSHA responded that because the rules cannot cover every conceivable contingency, there may be occasions where certain exceptions to the rules are necessary, and declines to delete the section.
 
Other

• The final rule has been revised to state that OSHA will request that the parties provide each other with copies of their submissions to OSHA during the investigation.
• The final rule added interest to the description of compensation, defined as the IRS interest rate for underpayment of taxes, compounded daily. OSHA will also require respondents to submit document of payment to the Railroad Retirement Board to ensure that employees are “made whole” in the receipt of compensation.
• American Short Line and Regional Railroad Association (ASLRRA) and the Association of American Railroads (AAR) asked OSHA to delete all reference to economic reinstatement, OSHA declined.
• OSHA revised the period for filing a timely petition for review with the ARB to 14 days rather than 10 business days.
• AAR requested payment by an employee of up to $1,000 in attorney’s fees to the employer if the ALJ determines a complaint was in bad faith or frivolous, OSHA declined to make the change.
• OSHA added the ability for employees to withdraw complaints orally.     
• OSHA eliminated the requirement in the interim final rule that complainants provide the agency 15 days advance notice before filing a de novo complaint in district court. Instead, this section now provides that within seven days after filing a complaint in district court, a complainant must provide a file stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB.