The Occupational Safety and Health Administration and the railroads have been fighting for years over employee discipline for workplace injuries. On Tuesday, January 15, 3013, OSHA and BNSF Railway Company (BNSF) announced that they have reached an Accord, resulting in BNSF’s voluntary revision of several personnel policies that OSHA alleged violated the whistleblower provisions of the Federal Railroad Safety Act (FRSA), 49 U.S.C. 5, Section 20109, and dissuaded workers from reporting on-the-job injuries. FRSA’s Section 20109 protects railroad workers from retaliation for reporting suspected violations of federal laws and regulations related to railroad safety and security, hazardous safety or security conditions, and on-the-job injuries.
According to Assistant Secretary Dr. David Michaels, “this accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so.” “It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries.”
In conjunction with the Accord, BNSF, through OSHA, has extended settlement offers to complainants in whistleblower matters pending before OSHA. If any of the individual complainants accepts the terms of the offer communicated to the complaint by OSHA, OSHA will approve the resulting settlement agreement. This is a significant step in the long running dispute between OSHA and the railroads.
Between August 2007 and September 2012, OSHA received 1206 FRSA whistleblower complaints. According to OSHA the number of FRSA whistleblower complaints that it currently receives surpasses the number of whistleblower complaints that it receives under any of the other twenty-one whistleblower protection statutes it enforces except for Section 11(c) of the Occupational Safety and Health Act. OSHA indicates that more than sixty percent of the FRSA complaints filed with OSHA involve an allegation that a railroad worker has been retaliated against for reporting an on-the-job injury.