[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Rules and Regulations]
[Pages 14091-14092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6953]


=======================================================================
-----------------------------------------------------------------------

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

[[Page 14092]]

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 Sec.  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 Sec.  
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.

    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]
BILLING CODE 4910-06-P