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Federal Agency Charged Railroad Company Refused to Hire Qualified Machinist Due to Epilepsy

eeoc-logoSEATTLE — The Washington, D.C.-based National Passenger Railroad Corporation, better known as Amtrak, will pay $112,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

According to EEOC’s suit, Amtrak withdrew its job offer of machinist journeyman at its Seattle yard when it learned Shawn Moe had a history of three epileptic seizures over the course of his life. Amtrak cited safety concerns, despite Moe’s record of safely working a similar job and despite his neurologist verifying to Amtrak that his epilepsy was successfully controlled on medication, that he had been seizure-free for years, and that he was able to safely perform the essential functions of the job without limitation while on medication.

“The fact that I have epilepsy has never prevented me from safely doing my job, not in the years I worked for another locomotive company before I applied to Amtrak, and not at the railroad machinist job I found after Amtrak took back its job offer,” said Moe. “Amtrak’s decision to withdraw its offer hit my family at a particularly vulnerable time because my wife and I just had our first baby. I thought, what if other employers react as Amtrak did and I can no longer practice my trade? How would I support my family?”

The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against an employee because of his disability, and also requires an employer to assess a worker’s actual ability to perform job functions where potential safety concerns are raised. EEOC filed suit in U.S. District Court for the Western District of Washington [Case No. 2:15-cv-01269] after first attempting to reach a pre-litigation settlement through its conciliation process.

The three-year consent decree settling the lawsuit provides $112,000 to Moe in lost wages and compensatory damages. The decree also requires Amtrak to train its staff on hiring obligations and assessing reasonable accommodations under the ADA. Amtrak will also implement and disseminate a modified ADA policy, and will post a notice for employees about the consent decree and employees’ rights under the ADA.

EEOC Senior Trial Attorney May Che said, “Amtrak concluded that Mr. Moe presented a significant safety risk without assessing the actual likelihood of him having a seizure at all. In enacting the ADA, Congress stated that employers must rely on objective, factual evidence — not on subjective perceptions, irrational fears, and patronizing attitudes — about the nature or effect of a particular disability, or of disability generally.”

EEOC Seattle Field Director Nancy Sienko added, “One out of every 26 people will develop epilepsy at some point in their lives. Given that epilepsy reportedly affects 2.2 million Americans and affects each person differently, it is critical that employers do not base job decisions on stereotypes, but instead carefully consider an employee’s abilities.”

According to publicly available information and its website, www.amtrak.com, Amtrak is a publicly funded service, operated and managed as a for-profit corporation with headquartered in Washington, D.C. In fiscal year 2015, Amtrak served over 30.8 million passengers and had $3.2 billion in revenue, while employing more than 20,000 people nationwide.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website at www.eeoc.gov.

Former GOP Rep. Steve LaTourette of Ohio died Wednesday at the age of 62 after fighting pancreatic cancer, according to several media reports. LaTourette was a well-known transportation advocate, especially for his northeastern Ohio district, and did stints on the House Transportation and Appropriations committees before retiring in 2013.
He was also famous for his biting sense of humor, whether he was playfully suggesting a Cabinet secretary was under the influence for elevating biking to the same level of importance as vehicles in transportation planning, or blasting his colleagues for not putting in what he felt was an adequate amount of effort into writing the 2012 transportation bill. Read more here.

njtransit2We are pleased to announce that SMART TD members on New Jersey Transit have ratified a new collective bargaining agreement.

Steve Burkert, SMART TD general chairperson; and Doyle Turner, SMART TD vice president; led the fight for a fair and equitable agreement while withstanding the unreasonable demands of NJT. After two Presidential Emergency Boards and numerous negotiating sessions, the SMART TD negotiating team reached an agreement that was overwhelmingly ratified by our members on NJT.

SMART TD President John Previsich said: “I want to commend General Chairperson Steve Burkert, SMART TD Vice President Doyle Turner, Alternate Vice President Anthony Simon and all of the members of the negotiating team for their efforts in bringing this round of negotiations to a satisfactory conclusion. The negotiating team, led by GC Burkert, was instrumental in carrying the wishes of our NJT members to the negotiating table and it is through their efforts that we were able to reach an agreement that was ratified by an overwhelming majority vote. It’s been a long battle for the New Jersey Transit members and now they will receive the wages and benefits to which they are entitled. This is a tremendous victory for NJT SMART TD members, and for our union brothers and sisters across the country.”

General Chairperson Burkert said: “It’s been a long, drawn-out process and I’m thrilled for my members and their families that we were successful in reaching an agreement that provides for financial stability going forward, especially during this very tough political time. I want to express my appreciation to the entire membership for their solidarity and support through this very difficult round of negotiations.”

STB_logoThe Surface Transportation Board released two decisions related to its oversight of Amtrak’s operations under the Passenger Rail Investment and Improvement Act of 2008 (PRIIA).
First, the Board decided that it would consider on-time arrival and departure at all stations along a passenger train’s route for purposes of assessing on-time performance. The Board will deem a train “on time” if it arrives at, or departs from, a station no more than 15 minutes after its scheduled arrival or departure.
The Board also announced that it is withdrawing its proposed policy statement on issues that may arise, and evidence to be presented in proceedings under PRIIA, in favor of a case-by-case approach to these complex matters.
“Reflecting careful consideration of an extensive public and stakeholder response to our most recent passenger rail proposals, these decisions will better position the Board to implement its responsibilities under the Passenger Rail Investment and Improvement Act of 2008,” stated Board Chairman Daniel R. Elliott III. “Improved passenger train on-time performance is an important goal, and the Board’s decisions will support that goal by clarifying the trigger for starting a proceeding, while allowing more complex and detailed issues to be resolved in the context of individual cases.”
Click the link to view the Board’s decision on On-Time Performance Under Section 213 of the Passenger Rail Investment and Improvement Act of 2008, Docket No. EP 726.
Click the following link to view the Board’s decision on Policy Statement on Implementing Intercity Passenger Train On-Time Performance and Preference Provisions of 49 U.S.C. § 24308(c) and (f), Docket No. EP 728.

On April 15, employees of Denver Transit Operators (DTO) voted to join SMART TD Local 202 at Denver. This vote adds 51 engineers to the local, with growth to a possible 75.
Local 202 Secretary Jeff Maxfield said, “We are proud to represent the operators at DTO and look forward to signing an agreement that not only protects health and welfare, but provides job protection and livable wages.”
Maxfield said that unfair treatment and labor practices led engineers of DTO to organize. Safety concerns also led the new members to look for representation.
Currently, DTO engineers are paid roughly 50 percent of the national average, an issue that SMART TD hopes to rectify.
The addition of these members to the local is thanks to a collaborative effort by Maxfield, Director of Organizing Rich Ross, Colorado State Legislative Director Carl Smith and SMART Sheet Metal Local 9 Organizer Tim Moran.
“This would not have been accomplished without the help of our sheet metal brother Moran,” Maxfield said. “This is a great example of every side working together in unison. This is also a great example of thinking outside the box for organizing opportunities.
DTO is a private company with a 29-year contract to operate and maintain the new commuter rail system currently under construction in and around Denver for the Regional Transportation District (RTD).
They are part of the Eagle P3 Project, which will provide service to over 36 miles of track with electric rail cars.

two-person_crewThe Columbus Dispatch reported that the issue of crew consist has railroads at odds with federal regulators. This comes after the Federal Railroad Administration announced a proposed rule earlier this year requiring two-person crews on trains.
Standing with the FRA, and this rule, are railroad employees, their unions and the public.
SMART TD National Legislative Director John Risch told the Columbus Dispatch, “Today, the only safe way to run a train is with two crew members. I would quit my job before I went out there by myself.”
Click here to read more from the Columbus Dispatch.

In a heroic show of foresight and bravery, SMART Transportation Division Vice Local Chairperson Rob Forrest (Local 202 at Denver) saved the life of a pedestrian Wednesday, July 20.
Forrest, who – according to SMART TD Colorado State Legislative Director Carl Smith – carries a tourniquet for his personal belief of being prepared, used the tourniquet to save a 22-year-old man’s life after being hit and dragged by a BNSF train that Forrest was on.
First responders credited Forrest’s application of the tourniquet to saving the man’s life.
Read more about the accident from CBS Denver.

Palmetto_rgb_webIt’s been on the news, and you may have heard about it: the Medicare appeals process is taking longer, specifically, at the Administrative Law Judge (ALJ) level. This article explains the five levels of appeals and provides information about the wait times for an ALJ hearing.
 
To begin, let’s look at the Medicare appeals process. The five levels are:

  1. Redetermination (first-level, performed at Railroad Medicare or your local Medicare Administrative Contractor for part A or durable medical products claims)
  2. Reconsideration (second-level, performed by a Qualified Independent Contractor/QIC)
  3. Hearing before an Administrative Law Judge or ALJ (which are independent from Medicare and are governed by the US Department of Health & Human Services (HHS))
  4. Review by the Medicare Appeals Council
  5. Judicial review in the U.S. District Court

Each level of appeal has certain timeliness standards. For a redetermination and reconsideration, contractors have 60 days to process an appeal request. For a third-level appeal, the guideline is the ALJ will generally conduct a hearing and render a decision within 90 days of the receipt of the hearing request. However, backlogs at the ALJ level are causing appeals to be processed, on average, in 819.4 days for Fiscal Year 2016 (from October 2015 to the present).
This problem with the untimely processing of appeals at the ALJ level is not new; however, the growing wait time has risen greatly since Fiscal Year (FY) 2012. The following trends show the average wait times by day at the ALJ level:

  • FY 2019 = 94.9 days
  • FY 2010 = 109.6 days
  • FY 2011 = 121.3 days
  • FY 2102 = 134.5 days
  • FY 2013 = 220.7 days
  • FY 2014 = 414.8 days
  • FY 2015 = 661.1 days
  • FY 2016 Average = 819.4 days

While the wait times average more than two years, HHS has been making beneficiary-submitted appeals a priority, “given that they often present emergent circumstances that must be promptly addressed,” as written on the Office of Medicare Hearings and Appeals (OMHA) Adjudication Timeframes webpage at http://www.hhs.gov/omha/important_notice_regarding_adjudication_timeframes.html.
It’s important to note that Medicare contractors, such as Palmetto GBA Railroad Medicare, do not have any connection to the ALJs and cannot assist in fast-tracking any appeals at the ALJ level.
For more information on this issue, you can visit the OMHA website at http://www.hhs.gov/omha.
If you have questions about your Medicare coverage, you may call Palmetto’s toll-free Beneficiary Customer Service Center at 800-833-4455, Monday through Friday, from 8:30 a.m. until 7 p.m. ET. For the hearing impaired, call TTY/TDD at 877-566-3572. You are also encouraged to visit the Palmetto GBA Railroad Medicare website at www.PalmettoGBA.com/RR/ME and their beneficiary Facebook page at www.Facebook.com/MyRRMedicare.

HEAT ILLNESS CAN BE DEADLY

OSHA_heat_ad-colorThe body normally cools itself by sweating. During hot weather, especially with high humidity, sweating isn’t enough. Body temperature can rise to dangerous levels if you don’t drink enough water and rest in the shade. You can suffer from heat exhaustion or heat stroke.
In 2014 alone, 2,630 workers suffered from heat illness and 18 died from heat stroke and related causes on the job. Heat illnesses and deaths are preventable.
 
 

Employers must protect workers from excessive heat

Under OSHA law, employers are responsible for providing workplaces free of known safety hazards. This includes protecting workers from extreme heat. An employer with workers exposed to high temperatures should establish a complete heat illness prevention program.

  • Provide workers with water, rest and shade.
  • Allow new or returning workers to gradually increase workloads and take more frequent breaks as they acclimatize, or build a tolerance for working in the heat.
  • Plan for emergencies and train workers on prevention.
  • Monitor workers for signs of illness.

To prevent heat related illness and fatalities:

  • Drink water every 15 minutes, even if you are not thirsty.
  • Rest in the shade to cool down.
  • Wear a hat and light-colored clothing.
  • Learn the signs of heat illness and what to do in an emergency.
  • Keep an eye on fellow workers.
  • “Easy does it” on your first days of work in the heat. You need to get used to it.

Working in full sunlight can increase heat index values by 15 degrees Fahrenheit. Keep this in mind and plan additional precautions for working in these conditions.

Who is affected?OSHA_heat_maintips

Any worker exposed to hot and humid conditions is at risk of heat illness, especially those doing heavy work tasks or using bulky protective clothing and equipment. Some workers might be at greater risk than others if they have not built up a tolerance to hot conditions,including new workers, temporary workers, or those returning to work after a week or more off. All workers are at risk during a heat wave.
Industries most affected by heat-related illness are: construction; trade, transportation and utilities; agriculture; building, grounds maintenance; landscaping services; and support activities for oil and gas operations.

What to do if a worker becomes ill?

  • Call a supervisor for help. If a supervisor is not available, call 911.
  • Have someone stay with the worker until help arrives.

Click here to listen to OSHA’s Heat Advisory Call.
Click here to download OSHA’s Heat Safety Tool Smartphone App.
Click here for more information from OSHA on heat safety.

OSHA is a Weather-Ready Nation Ambassador (WRN) committed to working with NOAA and other Ambassadors to strengthen national preparedness for and resilience against extreme weather.
How can OSHA help? Workers have a right to a safe workplace. If you think your job is unsafe or have questions, visit OSHA’s Worker’s Page or call 1-800-321-6742 (OSHA). It’s confidential. For other valuable worker protection information, such as Workers’ Rights, Employer Responsibilities, and other services OSHA offers, visit OSHA’s Workers’ page.
OSHA also provides help to employers. OSHA’s On-site Consultation Program offers free and confidential advice to small and medium-sized businesses in all states across the country, with priority given to high-hazard worksites. For more information or for additional compliance assistance contact OSHA at 1-800-321-6742 (OSHA).