BNSF Agrees to Change Policies Involving On-the-Job Injuries

Assistant Secretary Dr. David Michaels said the agreement "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."

OSHA announced it has signed an accord with BNSF Railway Co., headquartered in Fort Worth, Texas, that calls for the railroad to change several personnel policies that OSHA alleged violated the whistleblower provisions of the Federal Railroad Safety Act and discouraged workers from reporting on-the-job injuries. The law's Section 20109 protects railroad workers from retaliation for reporting suspected violations of federal laws and regulations related to railroad safety and security, as well as on-the-job injuries.

"Protecting America's railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA's mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so," Assistant Secretary Dr. David Michaels said in the agency's news release. "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."

According to the release, the major terms of the agreement are:

  • Changing BNSF's disciplinary policy so injuries no longer play a role in determining the length of an employee's probation after being suspended for a serious rule violation. As of Aug. 31, 2012, BNSF has reduced the probations of 136 employees who were serving longer probations because they had been injured on the job.
  • Eliminating a policy that assigned points to employees who were injured at work.
  • Revising a program that required increased safety counseling and prescribed operations testing to ensure that work-related injuries will no longer be the basis for enrolling employees in it. During negotiations leading to the accord, BNSF removed about 400 workers from the program.
  • Instituting a higher-level review by upper management and the railroad's legal department for cases where an employee who reports an on-duty personal injury is assessed discipline related to the incident giving rise to the injury.
  • Implementing a training program for BNSF managers, labor relations, and HR professionals to educate them about their responsibilities under the law.
  • Making settlement offers in 36 cases to employees who filed whistleblower complaints with OSHA claiming they were harmed by the company's previous policies.

"Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health," said Michaels. "If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk because employers do not learn of and correct dangerous conditions that have resulted in injuries."

The release says OSHA has received more whistleblower complaints under FRSA than under any of the other 21 whistleblower protection statutes it enforces, except for Section 11(c) of the Occupational Safety and Health Act of 1970. "More than 60 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," it says.

The agreement is availablel at http://www.whistleblowers.gov/acts/bnsf_accord.html.

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