Redefining medical fitness for duty

FRA-regulated railroads are the only U.S. transportation mode that do not have comprehensive, federally mandated medical fitness-for-duty standards and monitoring protocols. Only vision and hearing are covered by FRA regulations. That leaves railroads free to fashion standards and impose them, at will, on employees.

This is a bad situation for railroad workers and unions. One example is the policy (paraphrased) of one railroad that imposed unilateral medical fitness-for-duty standards: “Diabetes treated with insulin and severe sleep apnea have been added to reportable conditions that apply to field employees. These employees must report any new diagnosis or change in a prior stable condition for cardiac conditions, including heart problems and strokes; seizure or loss of consciousness; insulin-treated diabetes; severe sleep apnea; a significant change in vision or hearing including eye surgery, new use of hearing aids, etc. Employees must report any condition that may impact their ability to work safely. Medical rules are based on safety standards and regulations. They determine fitness for duty, including the medical and functional ability to work safely, with or without reasonable accommodations, and meet medical standards established by regulatory agencies.”

This was positioned a “safety” policy. As such, this railroad established the right to unilaterally determine its policy’s structure and content and determine how and to whom it is applied. The policy was written without input from workers or unions. It is vague, and the unpublished standards may very well be arbitrary.

The federal regulatory process allows for input from stakeholders and other interested parties. When medical fitness-for-duty regulations for other transportation modes were being developed, workers had the opportunity to provide testimony. Medical fitness standards for commercial motor vehicle operators, for example, were the product of an independent, nationally recognized medical expert panel.

Policies and standards written and imposed unilaterally by railroads lack the structure and constraints implicit in regulation, and vary widely. Establishing medical policy and standards, unilaterally, no matter how vague, reasonable or unreasonable, and making unilateral decisions on how and to whom they are to be applied, allows railroads to make out-of-service decisions, unilaterally, even though they may not be qualified to make such decisions, leaving workers and their representatives with whatever recourse, if any, in the terms of their collective bargaining agreements. As well, employees are “guilty” (medically unfit) until they prove themselves “innocent” (medically fit).

Even if an employee is eventually able to prove that he/she is medically fit, there may be no compensation for lost time and benefits. Thus, the right of railroads to medically disqualify employees denies those employees the ability to earn wages and benefits.

This approach alienates employees and unions, greatly diminishing the chance to gain labor’s cooperation.

Such policies and medical standards are almost certain to yield disparate and substandard results, leaving railroad workers and the public at great risk. When railroads have no requirement that employees undergo regular medical fitness-for-duty examinations, the employees decide when and what kind of medical procedures will be undertaken, no matter how at-risk they may be. Employees who receive a medical diagnosis that they are at-risk due to a performance-impairing medical condition decide whether that diagnosis rises to the level of a reportable condition, and if it is actually reported.

Such policies have the effect of driving the problems associated with medical conditions underground, because employees are not going to report conditions that will result in being removed from service. They cause workers to avoid regular medical examinations because they may find out they have a reportable medical condition that, if reported, could result in them being held out-of-service.

Instead of regulatory solutions, let’s consider an alternative: Adopt FMCSA (Federal Motor Carrier Safety Administration) medical fitness-for-duty standards and protocols and apply them uniformly across the rail industry, except where they are in conflict with other federal or state regulations. This could be done in an expeditious manner, without all the delays and costs associated with the rulemaking process. Qualified, FMCSA-certified medical examiners would make decisions, thereby addressing labor’s concerns about unfair or unjustified medical out-of-service decisions. Covered workers would be treated equally.

From September’s Railway Age magazine. William C. Keppen, Jr., a Transit Safety Analyst for a Close Call Reporting Program on an East Coast transit agency, is a former Class I BLET officer with experience in fatigue countermeasures programs.