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Railroad Industry COVID-19 Whistleblower Update

Article by Jeffrey Jackson, Esq.

The Federal Railroad Safety Act (FRSA) is a key piece of federal legislation for railroads and their employees. Among other provisions, Section 20109 of the FRSA provides protections to railroad employees who engage in “protected activity,” and it provides employees with a cause of action against railroad companies that take adverse employment action on a prohibited basis.

Section 20109 of the FRSA – and similar provisions of other federal employment statutes – have come into sharp focus during the COVID-19 pandemic. According to the U.S. Occupational Safety and Health Administration (OSHA), the agency’s Whistleblower Protection Program (WPP) received a record number of complaints during fiscal year 2020 (which ended on September 30, 2020). As of April 25, 2021, the WPP had received more than 5,000 whistleblower complaints under the FRSA and similar statutes related to COVID-19.

Notably, while whistleblower complaints related to COVID-19 are up overall, they are down in the railroad industry. Claims filed under the FRSA have declined each year since 2018, and they declined drastically in FY 2020. With just 154 claims filed, 2020 saw a 39-percent decrease in claims compared to 2019.

Common Pandemic-Related Whistleblower Claims

While whistleblower claims in the railroad industry may be down overall, the COVID-19 pandemic still presents risks for railroad companies in relation to Section 20109 of the FRSA. With this in mind, railroad companies should be taking proactive steps to mitigate their risk of whistleblower retaliation claims. To date, some of the most common claims under the FRSA and similar statutes have involved alleged retaliation against employees who have reported:

  • Failure to provide adequate personal protective equipment (PPE) and ventilation
  • Failure to implement adequate social distancing protocols
  • Failure to report incidents of employees contracting COVID-19 in the workplace
  • Refusal to allow employees to return to work after self-quarantine
  • Furlough of employees based on employee demands for COVID-19 spread mitigation measures

Of course, not only do these types of acts and omissions create risks for potential retaliation claims under Section 20109 in the event an employee blows the whistle, but they create potential liability risks related to workplace safety and employment law compliance as well.

Mitigating the Risk of COVID-19 Whistleblower Claims

In order to mitigate their risk of facing whistleblower retaliation claims related to COVID-19, what can (and should) railroad companies do? Some of the steps we are currently recommending to our industry clients include:

  • Proactively communicate with employees regarding companies’ COVID-19 policies and procedures
  • Thoroughly document all health and safety complaints
  • Take all health and safety complaints seriously, and investigate complaints promptly
  • Ensure that policies and procedures for reporting suspected health and safety violations are up to date
  • Ensure that policies and procedures regarding whistleblower retaliation are up to date
  • Consider providing additional compliance training to management personnel