F.R.A. Interpretation of Supervision Entering Exam Room of an Injured Employee

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

Railroad Accidents/Incidents: Reports

Classification, and Investigations

AGENCY: Federal Railroad Administration (FRA), Department of Transportation.

ACTION: Notice of interpretation.

SUMMARY: FRA is issuing this notice of interpretation to inform interested

parties of its application and enforcement of the harassment or

intimidation provisions contained in 49 CFR part 225, specifically relating to

situations in which a supervisor or other railroad official accompanies an injured employee into an examination room. This notice of interpretation informs the regulated community as to when such behavior constitutes harassment or intimidation calculated to discourage or prevent the reporting of an accident, incident, injury or illness. This document is not intended to address or impact statutory provisions related to providing ‘‘prompt medical attention,’’ as enforcement of those provisions fall within the jurisdiction of the U.S. Department of Labor.

FOR FURTHER INFORMATION CONTACT:

Douglas H. Taylor, Staff Director, Operating Practices Division,

Office of  Safety Assurance and Compliance, FRA,

1200 New Jersey Avenue, SE., RRS–11,

Mail Stop 25, Washington, DC 20590

(telephone 202–493–6255); or Zeb

Schorr, Trial Attorney, Office of Chief

Counsel, FRA, 1200 New Jersey Avenue

SE., RCC–11, Mail Stop 10, Washington,

DC 20590 (telephone 202–493–6072).

SUPPLEMENTARY INFORMATION:

I. Background

Section 225.33(a) of Title 49 of the Code of Federal Regulations requires

each railroad to ‘‘adopt and comply with a written Internal Control Plan’’

addressing the railroad’s policies and procedures regarding accident/incident

reporting. This section further requires that such Internal Control Plans include,

at a minimum, a ‘‘policy statement declaring the railroad’s commitment

* * * to the principle, in absolute terms, that harassment or intimidation

of any person that is calculated to discourage or prevent such person from

receiving proper medical treatment or from reporting such accident, incident,

injury or illness will not be permitted or tolerated * * *.’’ The FRA Guide for

Preparing Accident/Incident Reports also notes that ‘‘many railroad employees

fail to disclose their injuries to the railroad or fail to accept reportable treatment

from a physician because they wish to avoid potential harassment from

management or possible discipline that is sometimes associated with the

reporting of such injuries.’’ FRA Guide, Ch. 1, p.8. The FRA Guide goes on to

state that supervisory personnel and mid-level managers in some instances

“are urged to engage in practices which may undermine or circumvent the reporting

of injuries and illnesses.’’ Id. FRA is aware of incidents in which a supervisor or

other railroad official (hereinafter collectively referred to as the ‘‘supervisor’’) has

accompanied an injured employee into an examination room, or other room in

which the injured employee received medical treatment (hereinafter collectively

referred to as the ‘‘examination room’’). While FRA is concerned that injured

employees in such situations may not receive complete or prompt medical

treatment, responsibility for ensuring that such treatment is afforded has been

assigned by Congress to the Department of Labor. FRA is concerned that when

accompanied by a supervisor an injured employee may be discouraged or

otherwise prevented from reporting an accident, incident, injury or illness.

Similarly, a supervisor may influence the type or extent of medical treatment

afforded the employee in an effort to affect the reportability of that injury.

Although concerns have been expressed as to the need for a railroad to determine

the extent of an employee’s injuries, FRA does not believe that such concerns

outweigh the potential pitfalls and problems associated with the practice of

having supervisors accompany injured employees while they receive care from

their physicians. Moreover, physicians are in the best position to evaluate the

health of injured employees and the presence of a supervisor during such

examinations would not, in most cases, add any value to the treatment of an

employee and would, in general, be a distraction to both the employee and the

physician. The purpose of this document is to articulate a general principle regarding

what behavior constitutes harassment or intimidation in violation of

§ 225.33(a)(1) in the particular context of supervisors accompanying injured

employees in examination rooms. The interpretation contained in this notice

reflects the longstanding position of FRA regarding this practice. This

document is not intended to address or impact the meaning or application of

the statutory provisions contained in 49 U.S.C. 20109 related to providing

‘‘prompt medical attention,’’ as enforcement and application of those

provisions fall within the jurisdiction of  the U.S. Department of Labor.

II. Interpretation

A. General Principle

Harassment and intimidation occur in violation of § 225.33(a)(1) when a

railroad supervisor accompanies an injured employee into an examination

room, unless one or more of the exceptions listed in section II(B) of this

notice exists.

B. Exceptions

FRA recognizes that there are limited circumstances in which it is

appropriate, and indeed preferable, for a supervisor to accompany an injured

employee into an examination room. Thus, FRA believes that limited

exceptions to the general principle articulated in section II(A) of this notice

are necessary. Consequently, FRA recognizes the following limited

exceptions:

(1) The injured employee issues a voluntary invitation to the supervisor to

accompany him or her in the examination room. The injured employee

must issue this invitation freely, without coercion, duress, or

intimidation. For example, an injured employee may seek the attendance of a

supervisor where the supervisor is a friend. This exception does not encompass

invitations issued by third parties, including physicians, unless the invitations

are made pursuant to the request of the injured employee. (2) The injured

employee is unconscious or otherwise unable to effectively communicate

material information to the physician and the supervisor’s input is needed to

provide such material information to the physician. In these circumstances, the

supervisor is assisting the injured employee in providing information to

the physician so that the injured employee may receive appropriate and

responsive medical treatment.

s on PROD1PC70 with RULES

14092 Federal Register / Vol. 74, No. 59 /

Monday, March 30, 2009 / Rules and Regulations

Issued in Washington, DC, on March 24,

2009.

Jo Strang,

Acting Deputy Administrator, Federal

Railroad Administration.

[FR Doc. E9–6953 Filed 3–27–09; 8:45 am]

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