The Third Circuit Court of Appeals held recently that the provision of the Federal Rail Safety Act (FRSA) prohibiting railroads from disciplining employees "for following orders or a treatment plan of a treating physician" applies only to on-duty injuries. Port Authority Trans-Hudson Corp. v. DOL. The decision reversed an award in favor of a signal repairman for the Port Authority Trans-Hudson Corp. (PATH) who had a number of absences stemming from an injury to his back after moving boxes at his home. The employee was suspended for six days without pay for excessive absenteeism.

At issue in the case was subsection (c) of §20109, which provides as follows:

"(c) Prompt medical attention --

(1) Prohibition. -- A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

(2) Discipline. -- A railroad carrier or person covered under this section 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,..."

PATH argued, and the Third Circuit ultimately held, that the phrase "during the course of employment" in subsection (c)(1) is incorporated into subsection (c)(2), which does not contain such limiting language. The court suggested that without such limiting language, railroad employees could abuse the FRSA to "functionally confer indefinite sick leave on all railroad employees who can obtain a physician's note." The decision instead limits coverage of the FRSA only to medical treatment provided in relation to an injury suffered during the course of an employee's railroad employment.

Railroad employees facing discipline for excessive absenteeism for off duty injury or illness may have other legal protections outside of the FRSA, including protections of the Family Medical Leave Act (FMLA) or the Americans With Disabilities Act (ADA). If facing such a situation, employees should contact our office to determine if any legal protections are available.