As everyone now knows, the president declared a national emergency due to the Corona Virus. Many state and local officials have ordered businesses shut and employees to stay at home. However, Class I interstate railroads are part of the nation’s critical infrastructure as defined by Presidential Policy Directive 21; their continued operation is necessary for delivery of food, fuel, medicine and other supplies vital to the nation’s ability to respond to the pandemic. Many railroad employees, therefore, perform services essential to the health, safety and security of the country and are exempt from local, state or federal travel and work restrictions.
What this means, of course, is that unlike most Americans, railroad employees continue to work and, as a result, are in harm’s way when it comes to the virus.
As attorneys representing railroad workers, we at The Myers Firm are receiving stories from employees about things that are happening to them at work. Many of the reports I’m getting have to do with certain railroads not taking steps to protect their employees. Workers have told me they are not being provided with basic supplies like masks, gloves, and sanitizer, but are being told by superiors to purchase their own protective equipment and sanitizer.
In one especially egregious case, I was informed by a locomotive engineer that when he requested cleaning supplies for his locomotive, he was reported for insubordination and a superintendent wanted him taken out of service. Luckily, his union stepped in and saved his job.
To protect workers, the SMART union recently filed an emergency petition with the FRA, seeking an Order requiring railroads to take precautions to mitigate against employees contracting the virus.
On the other hand, I’ve heard from other employees that some co-workers in some of the shops aren’t taking the disease seriously; some are even joking around, coughing on each other. Obviously, this is foolish; the virus is killing Americans by the hundreds now and, many expect, will soon be taking lives by the thousands. The threat of transmission is serious enough that when a Wegman’s customer deliberately blew in an employee’s face and told her he had the virus, he was arrested for third-degree terrorism, a charge that carries a 3-5 year prison sentence. (I discussed the Wegman’s case with another attorney, who suggested to me that the Wegman’s employee might sue the offender civilly; this is a possibility, though the offender’s homeowner’s insurance likely wouldn’t cover the claim because most policies exclude coverage for criminal acts).
On the economic front, railroad employees are worried about furloughs and some have been asked to forego scheduled raises. Amtrak is laying off 40 TLS employees. It’s hard to know exactly what the railroads will seek to do as the economic crunch worsens. In the meantime, the federal Railroad Retirement Board is advising railroaders to establish an online login.gov account. This will give workers a head start in the event that RRB unemployment or sick benefits are needed by workers. I urge railroad employees to do this now.
I have been asked by some employees whether their contracting the virus could give rise to a claim under theFederal Employers’ Liability Act (FELA). Theoretically, yes, but the employee would have to prove that they contracted the virus at work, rather than elsewhere, which would be a difficult hurdle under most circumstances. Still, it is worth considering, especially if the employee suffers serious long-term injury, or death.
The COVID-19 pandemic is a once-in-a-century event and is likely to raise legal issues that haven’t been thought of before. At The Myers Firm, we intend to remain at the forefront of legal developments related to the virus, andwe want all our railroad clients, and all railroaders, to know that we are here, that we care, and that we are available to answer any questions, or otherwise help you and your families through the difficult days ahead.