Employers cannot compel employees to disclose any information about illnesses, injuries, health conditions, doctor visits or ongoing therapies when those situations are not related to workers' job performance.
By Rick Shapiro, Railroad Injury Attorney
Federal laws ranging from the Americans With Disabilities Act to the Pregnancy Discrimination Act make it illegal for any business in any industry to use may kinds of information in workers’ private medical files to make hiring, promotion and firing decisions. As corollaries to those rules, employers cannot compel employees to disclose any information about illnesses, injuries, health conditions, doctor visits or ongoing therapies when those situations are not related to workers’ job performance.
Freight railroad giant BNSF Railway intentionally violated all its employees’ federal medical privacy protections when, starting January 1, 2012, the railroad required engineers, conductors, trackmen, rail yard workers and office personnel to share every piece of health information with immediate supervisors. In a discrimination complaint filed with the federal Equal Employment Opportunity Commission, the Brotherhood of Locomotive Engineers and Trainmen noted that BNSF’s policy on medical disclosure extended to ”medical conditions and/or events that occur or are diagnosed while they are away from work … even if there is no reasonable basis for believing the condition or event has any impact on the employee’s ability to perform his/her job, and even when the employee’s own doctor has placed no limitations on the employee’s job activities.”
The United Transportation Union, along with eight other groups representing rail workers across the United States, also petitioned the EEOC to compel BNSF to rescind the medical reporting policy. The organizations argued that requiring employees to “share doctor’s notes, diagnostic test results and hospital discharge summaries” could serve no other purpose than providing the rail corporation non-job-related health information it could use to make employment decisions.
BNSF announced that it was rescinding the policy — officially listed a Rule 26.3.1 in its employee handbook – in early April. A company spokeswoman told the Lincoln (NE) Journal Star that BNSF wanted only to protect other workers and the public from employees whose health problems might make them unsafe. In that same article, though, a different railroad representative was quoted as confirming to Progressive Railroading that BNSF wanted the private medical records for “expeditious, confidential handling of fitness-for-duty reviews.”
Again: Numerous federal laws explicitly prohibit the use of large categories of medical information for making employment decisions. BNSF was definitely violating workers’ privacy when issuing and enforcing Rule 26.3.1. It attempted to justify the illegal and discriminatory policy by claiming employees had in the past put other people at risk for injury or death because they had health problems they had not disclosed to the company. Such a claim asserted without specific evidence cannot be taken on faith; at the same time, the company’s defense for flouting health privacy laws absolutely convinces everyone that the company’s executives do not trust employees to be honest or value others’ safety.
As a personal injury attorney who regularly helps railroad workers who develop occupational illnesses and get injured on the job. I also strongly suspect that BNSF wanted access to employees’ complete medical records so it could use the information to claim that any work-related injury or disease was caused by a “preexisting condition.” I already know railroads will use just about any defense to avoid liability, so having all of a hurt or sick worker’s medical records would almost certainly be a temptation BNSF could not resist.
I am equally convinced that if BNSF’s Rule 26.3.1 had withstood union objections and EEOC review, Amtrak, CSX, Norfolk Southern and every other rail corporation would soon require their workers to share every piece of health information. That won’t happen for now, but the railroads must be watched closely for their next effort to violate employees’ health privacy rights.
EJL
About the Editors: The Virginia- and Carolina-based attorneys at Shapiro, Lewis & Appleton have long histories of representing railroad workers in FELA and other railroad injury cases and of helping victims of rail crossing accidents. Lawyers at our firm have served as chairmen of the railroad section of the American Association for Justice, the largest national victim’s injury attorney organization, and one of our attorneys wrote a major legal encyclopedia section on railroad safety litigation. Check out our railroad injury case results to see for yourself. Be sure to get your free reports about railroad injury, disease and wrongful death FELA cases: The Do’s and Don’ts When Injured at a Railroad — Yours FELA Rights and What Railroad Claim Agents Won’t Tell You (But You Must Know). Also, our railroad injury lawyers proudly donate to the Fallen Brother Fund.
