Archives for November 26, 2016

http://www.bsgfdlaw.com/railroad-injury-blog/intimidating-railroad-tactics-confidential-medical-information

I recently spoke with a railroad client and learned about another example of a railroad overreaching its bounds and intruding on the personal rights of its employees – this time with regard to the right of medical confidentiality.  Given the importance of this issue, I thought it would be a good opportunity to explore this situation in more detail.

I have blogged before about railroad employee’s right under the Federal Rail Safety Act whistleblower provisions to immediate medical treatment under §20109.Specifically, §20109

(c) (1) requires a railroad to promptly arrange to have an injured employee transported to the nearest hospital for appropriate medical care.  As stated previously, in order to trigger this provision of the FRSA whistleblower law, the employee must request the transport.

However, what happens when an employee indicates that they do not require transportation?  In this recent situation, a railroad employee reported an exposure to fumes in a locomotive, but stated he was not adversely affected.  Rather than express a concern about the potential health effects on the employee, the railroad used this opportunity to require him to come into the yard office where he was interrogated by several management employees, including the railroad’s Medical Director by telephone, about his overall health.

For employees in this situation, it is important to understand your right of medical confidentiality. While the railroad may have the right to information regarding your health as it pertains to your ability to safely work on the railroad, it does not mean that they can go on a fishing expedition and require you to reveal information about your overall health to a room full of management employees. That information is confidential and may be used against you in the future.  Accordingly, unless the medical condition is relevant to your ability to work safely and requested under appropriate circumstances, an employee in that situation should consider their right of confidentiality before providing this information.  Of course, if the railroad employee is given a direct order then a charge of insubordination may be implicated.  Therefore, consultation with your Local Chairman or legal counsel is recommended.

This discussion brings to mind another important issue regarding medical confidentiality. In a situation in which the employee does request medical treatment, the railroad is required to transport that employee, if requested, to the closest appropriate medical facility. Once the employee is at that medical facility, the railroad cannot interfere in any way in the employee’s medical treatment. This means that once the employee is under the care of a physician, the railroad’s management has no right to inquire about the employee’s condition or interfere in any way in the employee’s medical treatment.

Should you have any questions regarding this issue or any other related matter, please do not hesitate to contact our office for a consultation. Please visit our website and download our App for Railroad Employees (search “Matt Darby” and “railroad” in App Store).  You can also reach us at 800-248-FELA.