Railroad Attendance Policies – What Are Your Rights?

by Scott Gershenson, Counsel

It is hard to imagine a more significant development in day-to-day operations for railroad workers than the enactment of new attendance policies among Class I railroads. These policies appear to increase the working demands of railroaders while also restricting their ability to engage in a normal family life outside of work. Depending on the circumstances, you may have legal rights that could protect you if the railroad attempts to improperly enforce their attendance policies.

One of the recent attendance policy changes came at BNSF through its new “Hi-Viz” program. Although BNSF has stated publicly that this new Hi-Viz policy would “provide more predictability for [its] train crews while also providing more reliable crew availability,” the policy has created a more demanding and, in many circumstances, less safe working environment for railroad workers. Hi-Viz operates through a points system whereby employees are required to be on call on a near-constant basis. Employees are allotted a certain number of attendance “points,” and taking off work typically costs them many of these allotted points. Employees can only earn points back by being available for work within a short period of time for 14 straight days. This means that, at least under the terms in the attendance policy, employees are not permitted to take a family trip, enjoy a night out with their spouse, or visit the doctor – without violating the attendance policy. If an employee burns through his or her attendance points, he or she is provided smaller, additional allotments. Once those additional allotments are exhausted, the policy calls for the employee to be terminated.

As one might expect, this policy has only added stress to the lives of railroad workers, who already operate in demanding and safety-sensitive environments. As a result, railroaders should be aware of their legal rights and how those rights might offer them protection. Unfortunately, there have already been circumstances where employees show up to work exhausted due to constantly being on-call and have fallen asleep while operating heavy trains. This scheduling practice by railroads has led to derailments and severe injuries to employees, exposing railroad workers and the public to danger. The Federal Rail Safety Act (FRSA) protects railroaders from retaliation when they refuse to work in an imminently hazardous safety environment. An employee refusing to work because he or she is ill or too fatigued to work could, depending on the circumstances, qualify as a legitimate refusal to work in a hazardous environment and therefore, could be considered a protected activity under the FRSA. Of course, illness and fatigue must be supported by a qualified physician.

Separately, the FRSA also prohibits the railroad from denying or interfering with the medical treatment of an employee who was injured on-duty, and also prohibits the railroad from disciplining an employee for requesting medical treatment or following his or her doctor’s treatment plan. An employee who was injured at work could therefore be protected from attendance violations when visiting a doctor for treatment of an on-duty injury, but supporting documentation should be supplied to the railroad.

The Family Medical Leave Act (FMLA) may also offer protection to employees seeking intermittent or long-term leave due to a medical condition or family illness. Again, an employee interested in pursuing FMLA leave must satisfy the requirements under that law to qualify for that protection. More information about qualifying for FMLA can be found by visiting the U.S. Department of Labor website (https://www.dol.gov/agencies/whd/fmla) or by contacting your human resources department.

Finally, the Federal Employers’ Liability Act (FELA) could offer protection to employees injured due to the acts of a fatigued worker, who suffered from said fatigue by relying on the railroad’s on-call scheduling system. After all, FELA requires that railroads provide its employees with reasonably safe equipment, safe working conditions, and safe methods for work. An attendance policy that causes an employee to be too tired to work resulting in an injury, could amount to a failure by the railroad to provide a safe working environment for its injured employees.

The protection offered by these laws depends on the unique facts of every case. If you have any questions about railroad employee protections and how they may affect you, please contact our team to discuss further.