On September 27, 2013, the U.S. Department of Labor Administrative Review Board confirmed that railroads can't legally discipline employees for missing work on the orders of a treating physician, even if the treatment is for an off-duty injury. The decision apparently impacts railroad attendance policies like BNSF's "availability" policy, which BNSF claims applies to all absences, no matter how medically legitimate or unavoidable.
The relevant statute has two subsections under the common heading "prompt medical attention." The first subsection says when the employee suffers an on-duty injury ("injured during the course of employment") the railroad can't delay the employee's access to medical care for that injury, and even has to transport the employee to medical care if the employee so requests. The second subsection doesn't include the "injured during the course of employment" limitation. It says the railroad can't discipline the employee for following the "orders" or "treatment plan" of a treating physician. 49 U.S.C. § 20109(c).
In Bala v. PATH, the railroad employer argued that the common heading "prompt medical attention" meant the second subsection had to be interpreted as if it contained the same "injured during the course of employment" limitation as the first subsection. The Administrative Review Board disagreed. One of the first rules of statutory interpretation is to apply the plain language, without inserting words that have been omitted or omitting words that have been inserted. Headings and titles don't ordinarily change the plain meaning. The first subsection contains an on-duty limitation. The second does not. The Administrative Review Board concluded this means Bala's railroad employer couldn't discipline him for missing work on the orders of his treating physician, even though the symptoms came on while Bala was moving boxes in his shed at home.
Read the full decision here: [gview file="http://www.paoli-law.com/wp-content/uploads/2013/10/Bala-PATH-ARB.pdf"]