OSHA to PATH: no retaliation against injured employee

One of the outcomes of the 9/11 Commission was that Congress passed two whistleblower protection laws for railroad and public transit employees in 2008. These are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, see § 1413 (NTSSA) and § 1521 (FRSA). Together, these laws assure the traveling public that if any of the carrier’s employees see a safety or security concern, they can raise that concern knowing that they have legal protection against retaliation, . . . unless they are traveling by ferry.

This week, the Occupational Safety and Health Administration (OSHA) issued a determination of an FRSA violation.  OSHA’s New York office did so in the most common of circumstances.  It has expunged a suspension for an employee of the Port Authority Trans-Hudson Corp. (the so-called PATH trains between New Jersey and Manhattan). According to OSHA’s press release, the employee, under a doctor’s order, was absent from work while recovering from an injury. PATH management accused the employee of absenteeism, and issued a suspension. The worker filed a whistleblower complaint with OSHA and OSHA has now concluded that this simple act of following a doctor’s orders is a protected safety-related act.

"Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician," said Robert Kulick, OSHA’s regional administrator in New York. "Railroads who retaliate against employees for exercising their rights will be held accountable."

OSHA has ordered PATH to take corrective action, including expunging disciplinary actions and references to them from various records as well as compensating the worker for lost wages resulting from the suspension. The railroad also must post and provide its employees with information on their FRSA whistleblower rights. Either or both parties can object and request a hearing before an Administrative Law Judge.

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