Safety first? Or privacy first?

Written by David Schanoes, Contributing Editor
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Photo courtesy of CNN.

I have this friend, a railroad professional. I know I would never question his commitment to safety. I hope he wouldn’t question mine. This friend is concerned that railroad management will unfairly use medical information it obtains from employees, from employees’ medical care providers, and from the requirements of a medical fitness for duty regulation, to disqualify employees from service. He fears railroads will weaponize the information.

This is not an unfounded or completely irrational fear. About 30 years ago, I witnessed railroad managers use drug and alcohol testing to “scare” employees.

Of course, I’ve seen the other end of that played by labor organizations. I witnessed a union official “suggest” to employees that they claim a personal injury in order to retaliate against an operating officer who had the temerity to require that the employees actually complete their work assignment that day.

That’s the nature of the beast, the beast being the contest between profit and cost that informs every issue, including that of safety, on the railroad.

This friend pointed me to the recent lawsuit filed by a number of unions against BNSF, claiming BNSF’s policy requiring medical documentation violates the Americans with Disabilities Act. Eleven unions have signed on as plaintiffs. The unions complain that BNSF requires employees who were on medical leave of absence to fill out a medical status report that includes non-work-related medical conditions, even if a personal physician approved them to return to work without any limitations.  

Among the “new” health issues BNSF included in its medical status form are diabetes, heart disease, seizures, stroke and sleep apnea. BNSF’s requirements, the plaintiffs allege, violate the ADA by obligating employees of the railway to certify that they are free of medical conditions that could adversely affect their ability to safely perform service. 

Really? Apparently so.

So let’s see: About one-third of all reported train accidents are the result of “human factors,” human errors. Metro-North’s 2013 fatal accident at Spuyten Duyvill was attributed to the locomotive engineer suffering from undiagnosed obstructive sleep apnea, as was the 2016 NJ Transit accident at Hoboken terminal that killed a bystander on the train platform. And BNSF’s fatal 2016 collision in the Texas Panhandle? What caused that?

But … reporting sleep apnea to the employer before you take charge of 10,000 hp hauling 10,000 tons of hazardous chemicals? Or ten electric MUs carrying 1,000 people at 90 mph? That’s a violation of the right to privacy? Discrimination? Weaponization?

How did I answer my friend? In the only way I could: with a real-life story:

It was a Friday rush hour around 5:30 PM, give or take, the “peak of the peak.” In the half hour from 5:15 PM to 5:45 PM, Metro-North dispatched more trains, received more trains, and made more yard moves than any other half-hour of the day.

A locomotive engineer on a departing New Haven Line train violated a stop signal at CP 1, at approximately 56th Street. Over the radio, I heard the dispatcher ordering the train to stop all movement. The engineer answered. I knew this engineer well—well enough to know he had stopped drinking and made himself clean, but when he answered the radio his speech was impaired. He could barely respond to the radio, although he did stop his train. (Sometimes I think if you are at a wake and if you whisper “stop your train” into the ear of the locomotive engineer in the casket, you’ll see the hands move.)

I also knew this engineer well enough to know he was suffering from cancer, and that his last sequence of chemotherapy had not been successful.

I doubted anyone in the railroad’s medical office would still be around at 5:30 PM on a Friday, but I called. I just had this suspicion …

“Better to be lucky than good,” Lefty Gomez had said, and lived, more than once in his career, and lucky I was when a medical technician answered the phone. After identifying myself, I asked the technician, “Is locomotive engineer ——on any medication?”  

“Why do you want to know?”

Exercising the maximum in self-control, I did not answer, “Because I’m the superintendent, you horse’s ass.” I thought that, but I did not say it. Instead, I said, “Because he just violated the stop signal at CP 1.”

“Oh, that figures,” said the technician.

“Figures?” I said, consumed half with disbelief and half with rage. “What do you mean ‘figures?’”

“He’s on a boatload of medication.”

“Would any of those impair his ability to safely operate a train?”

“I can’t tell you that.”

“Right,” I said, “because you don’t know what it takes to safely operate a train. So can you please give me the list of medications he is taking so I can make a determination?”

“Can’t tell you that either,” said the technician.

“Why is that?” I asked  

“Medical confidentiality.”

“Medical confidentiality? Did you tell the General Road Foreman of Engines?” 

“Nope. We don’t tell anyone. It’s all confidential.”

I usually don’t get this far into a conversation with someone who works for the railroad but has no idea what it means to work for a railroad without exploding in profanity. In this case, however, I did get this far, and I did not explode into profanity. I hung up the phone. Hard.

Now lest anyone worry that the punishment-centric, finger-pointing, blame-seeking, obsolete-unjust-culture railroad took advantage of the situation to ruin the rest of this locomotive engineer’s career, we did not. We took care of him. And everyone else. We took him out of the seat, but kept him employed, assigning him office duties at a terminal near his home. We, the operating officers, did exactly what we would have done had we known about his condition before the stop signal violation. He was suffering enough. We recognized that. We had an obligation to recognize that and do what we could to help him, to make him comfortable in what turned out to be the remaining days of his life.

We have an obligation to the safety of our customers and employees, and that obligation outweighs the confidentiality of medical information for any individual or any group of individuals employed by a railroad.

If an employee is allergic to peanuts or bee stings and carried an epinephrine injector in his or her bag, it is of vital importance that every member of that engineer’s crew have that information; that every line officer have that information in case of emergency. Yet, somehow, sleep apnea, diabetes, strokes and seizures are “confidential,” “too private” to be shared with those already sharing the operating environment with the employee? That’s just nuts. Just plain nuts.  

David Schanoes is Principal of Ten90 Solutions LLC, a consulting firm he established upon retiring from MTA Metro-North Railroad in 2008. David began his railroad career in 1972 with the Chicago & North Western, as a brakeman in Chicago. He came to New York in 1977, working for Conrail’s New Jersey Division. David joined Metro-North in 1985. He has spent his entire career in operations, working his way up from brakeman to conductor, block operator, dispatcher, supervisor of train operations, trainmaster, superintendent, and deputy chief of field operations. “Better railroading is 10% planning plus 90% execution,” he says. “It’s simple math. Yet, we also know, or should know, that technology is no substitute for supervision, and supervision that doesn’t utilize technology isn’t going to do the job. That’s not so simple.”

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