Brotherhood of Locomotive Engineers & Trainmen

 

Matt O. Wilson

GENERAL COMMITTEE OF ADJUSTMENT 
BNSF/MRL

            VICE CHAIRMEN
            JERRY LAPRATH
             KENT PSOTA
             MATT BRANDT

General Chairman

          801 CHERRY ST., SUITE 1010 Unit 8
                FT. WORTH, TX 76102-4237
                TEL (817) 338-9010 · FAX (817) 338-9088

 SECRETARY-TREASURER                  JIM .H. NELSON
      GALESBURG, IL 61401

 

 

 

Mr. Dennis Pierce                                                                                                                                                                                          January 27,2012
National President-BLET                                                                                                                                                                               File: BNSF Medical Policy
Mezzanine/The Standard Building
1370 Ontario Street
Cleveland, OH 44113-1702

Dear Sir and Brother:

The BNSF Railway has issued a new medical policy (attached) which we are asking you to review. From a layman's perspective, it appears to this Committee as if it violates HIPPA statutes and perhaps other laws.

Your timely reply will be greatly appreciated.

Fraternally

/s/ Matt O. Wilson

General Chairman

cc:           E. L. Pruitt, First Vice President, BLET
              W.C. Walpert, National Secretary-Treasurer, BLET
              M.D. Priester, Vice President, BLET
             M. S. Wolly, Esquire, General Counsel
             All BNSF BLET GC
             All BNSF Northlines LC

Attachments:


 

BNSF Railway                                                                                         Rules Change Briefing

S-26.3.1 Medical Requirements

Effective January 1, 2012, S-26.3.1 Medical Requirements is added to Employee Safety Rules, Mechanical Safety Rules, Maintenance of Way Safety Rules and TY&E Safety Rules.

Criteria for Medical and Environmental Health Department review applies to all time away from work categories (examples include vacation, personal leave, etc.).

S-26.3.1 communicates the requirements for employees experiencing a medical event or an initial diagnosis of a covered medical condition.

S-26.3.1 Medical Requirements

Employees meeting any of the following criteria must be reviewed for "fitness for duty" by the Medical and Environmental Health (MEH) Department before remaining at or returning to work. This applies to certain medical events / procedures that Occur during any category of time-off away from work.

1 . A new diagnosis of:

Diabetes with insulin Injection
Bone fracture
Heart disease or any heart surgery or procedure
Seizure
Stroke I TIA (transient ischemic attack)
Sleep apnea I sleep disorder

2. Any of the following medical events:

Hospitalization
Loss of consciousness
Surgery (in-patient or out-patient)
Severe, uncorrectable loss of hearing or vision
Medical treatment for condition affecting equilibrium Or balance
Medically required absence greater than 30 calendar days
Work restriction prescribed by Physician or other Medical Service Provider (MSP)
Condition deemed necessary by MEH Department or their designee

Employees must submit a Medical status Form (MSF) as well as the following clinical information (if appropriate to medical condition), by fax as listed on the form:

Operative reports
Applicable office notes
Diagnostic test results
Hospital discharge summary

Exceptions;

1. These medical requirements do not apply to employees for on-duty injuries. Employees with on duty injuries will be contacted by a MEH Department professional and return to work / stay at work service will be discussed.

2, These medical requirements do not apply to employees who are voluntarily working with the BNSF Employee Assistance Program (EAP) for behavioral health and/or substance abuse conditions. The EAP Manager will manage the return to work / stay at work process.

Employees may obtain a MSF from their supervisor, Field MEH Manager, Director of Administration or designated Leave Administrator. Employees must complete section I. and ensure that Physician or other MSP completes section II, of the form. The completed form must be sent directly to the fax number located at the top and bottom of the form. Do not send this form to the BNSF Leave Administrator.

MSF may also be obtained on the BNSF Intranet Site under Departments, Medical, MEH Programs and then select "Return to Work (RTW)".

Incomplete and/or illegible forms or documents may cause delays in determining "Fitness for duty".

Frequently Asked Questions:

1. Why is this "fitness for duty" return to service rule being added to the safety rules? This rule provides a process for employees to return to work after experiencing a medical event or an initial diagnosis of a covered medical condition and assists in providing a safe work environment for all employees.

2. Will I be withheld from service if I experience one of these medical events? If you are currently providing service and experience one of the medical events listed you may be withheld from service until the necessary information is received to determine your ability to safely perform the duties of your job.

3, If I am off on a medical leave of absence (MLOA) will I be withheld from service if I have experienced one of the medical events listed? If you are on a MLOA as a result of one of these medical events or diagnoses you will be required to comply with this rule before you can return to work. Your return to work will be expedited if you bring a copy of the Medical Status form with instructions to your last doctor's appointment.

4. I have diabetes and have good control of my condition. Do I need to comply with this process today? No, as long as your condition remains in good control. Note, Federal Requirements for diabetics who hold CDLs are more restrictive. Please contact the medical department for more information,

5. I have a heart condition, however, 2 years ago I was returned to work with restrictions by the Medical Department. Do I need to comply with this process today? No. your ability to safely perform the duties of your job has already been determined.

6. My hearing loss has been corrected by hearing aids. Do I need to follow this process? No, this process is to assist in providing a safe work environment for all employees and if you have corrected vision and/or hearing that allows you to safely perform the duties of your job, you are not required to report.

For any questions regarding this Safety Rule, please contact Carol Wilks, RN, COHN in the Medical Department at 817-352-1618 or by email: carol.wilkes@bnsf.com.

PLEASE NOTE THAT ALL RULES AND POLICIES THAT ARE IN EFFECT AT THE DATE OF THE ISSUANCE OF THIS SAFETY BRIEFING ARE SUBJECT TO CHANGE. PLEASE CONTACT SAFElY/RUI.ES TO DETERMINE VALIDITY BEFORE YOU USE THE INFORMATION IN THIS BRIEFING AT A LATER DATE.


Transportation Communications Union/IAM
International Association of Machinists and Aerospace Workers

Robert A. Scardelletti
National President

 

Mr. John 1. Fleps   January 17,2012
Vice President of Labor Relations
B.N.S.F. Railway
2600 Lou Menk Drive, P.O. Box 961030
Fort Worth, TX 76161-0030

Dear Mr. Fleps:

I write on behalf of all the Carmen and Clerical employees at BNSF that the Transportation Communications Union/lAM represents. TCU has received BNSF's new policy, S-26.3.1, Medical Requirements (copy attached). This policy, which BNSF unilaterally adopted, with no prior notification to TCU, is a: total invasion of our members' private medical information. I write now to demand that BNSF immediately withdraw the policy.

As written, the policy purports to require all employees to self-identify a host of disabilities and serious medical conditions. For example, employees who are newly diagnosed with such things as diabetes, a broken bone, or heart disease or employees who are hospitalized, have surgery (including out-patient surgery), or experience any "condition deemed necessary by MEH Department" must report the same to the carrier. BNSF then requires the employee's medical provider to provide their diagnosis and to attach some of the most intimate and personal information about the employee such as "operative reports, applicable office notes, diagnostic test results and Hospital discharge summaries." Worse, an employee who has had no performance issues of any kind may then be held out of service without pay until he or she completes a "fitness for duty" test. This applies even when the employee has NOT missed a day of work, but has had these procedures done on the employee's own time.

On its face, the rule violates the Americans With Disabilities Act ("ADA"). The ADA provides:

"A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. 12112(d)(4)(A) (emphasis supplied).

Rule S-26.3.1 is clearly an impermissible "inquiry" of whether employees have a disability and as to the nature and severity of such disability. BNSF's blanket policy, applicable to all employees regardless of business necessity clearly is over-broad and violates this provision.

It is quite likely that the rule also violates the Family and Medical Leave Act ("FMLA") (for example, it requires employees to provide information beyond that which is permissible under the FMLA), the Pregnancy Discrimination Act, FELA, various state laws and other laws designed to protect employees' confidential medical information.

As a result, TCU, on behalf of the Carmen and Clerks, must insist that BNSF immediately withdraw the policy. Should BNSF decide to persist with this unlawful rule, TCU will use every legal means available to challenge the rule and ensure that our Carmen and Clerical members are able to work in an environment free from such invasive and unlawful demands.

On the other hand, if you withdraw the rule, TCU would be happy to meet with you to discuss whatever issue you are trying to address with this rule. Perhaps together we can negotiate a new rule that addresses your concerns but in a lawful manner.

I look forward to a response no later than January 25, 2012.

Attachment

cc:   R. A. Johnson, GP/BRC
       J. M. Parker, NVP
       T. F. Truhler, NVP
       Danny Lancaster, NR
      Mary Gunn, NR
      Stan Berlowitz, ANR
      Randy D. Bower, ANR
      Kelly Gilbertson, ANLD
      National President
      Carla Siegel, Deputy General Counsel, lAM


International Association of Machinists and Aerospace Workers

9000 Machinists Place
Upper Marlboro, Maryland 20772-2687

Area Code 301-967-4500

OFFICE OF THE GENERAL VICE PRESIDENT


 

                                                                                                                                                                           DL19

John J. Fleps, VP Labor Relations                                                                                                                       January 18,2012
B.N.S.F. Railway                                                                                                                                                Subj: BNSF's new "Medical Requirements"
2600 Lou Menk Drive
P.O. Box961030
Fort Worth, TX 76161-0030

Dear Mr. Fleps:

Rule, S-26.3.1

I am writing to you on behalf of District Lodge 19 of the International Association of Machinists and Aerospace Workers ('DL 19") with regard to BNSF's new "Medical Requirements" Rule, S-26.3.1. This rule is a blatant violation of a host of federal laws designed to protect the sanctity of employees' confidential medical information, including, but not limited to, the Americans with Disabilities Act ("ADA").

As you are undoubtedly aware, the ADA provides:

"A covered entity ... shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. 12112(d)(4)(A) (emphasis added).

Yet this is precisely what Rule S-26.3.1 does. BNSF's new rule inquires whether employees have disabilities such as diabetes, a broken bone, heart disease, disabilities causing seizures, stroke, or sleep apnea. It makes even broader inquiries into whether an employee is disabled and the nature and severity of the disability by requiring reporting of such things as any hospitalization, any loss of consciousness, any surgery regardless of whether it is "in" or "out" patient, any severe uncorrectable hearing or vision loss, any medical treatment regarding imbalance and any other "condition deemed necessary by MER Department."

As if this intrusion into machinists' confidential health information were not enough, BNSF further requires the employee and his/her medica1 provider to provide "operative reports, applicable office notes, diagnostic test results and hospital discharge summaries." The employee, who was not requesting leave or an accommodation and who had no job performance problems, may then be adversely affected when he or she is held out of service until the employee completes a "fitness for duty" test. Further demonstrating the lack of any foundation on BNSF's part to request this information, this new rule specifically applies when these incidents occur during "all time away from work."

In summary, BNSF's Rule S~26.3.1 and the corresponding forms are overbroad and not narrowly tailored. Further, the information they seek violates Federal law, including the ADA, and potentially many other federal and state laws whose purpose is to protect employees' confidential medical information. These would include, but not be limited to, the FMLA, FELA, and the Pregnancy Discrimination Act.

DL 19, therefore, demands that BNSF immediately cease and desist from implementing this new rule. If BNSF decides to maintain the new rule, DL 19 will use all available legal means to ensure that the rule is struck down in order to protect the confidentiality of all Machinists' personal medical information.

At the same time, if BNSF is willing to withdraw the new Rule, DL 19 would like to sit down with you to discuss what rule could be negotiated that would lawfully meet the goals you are trying to achieve while ensuring that employees' confidential medical information remains sacrosanct. I would note that no one from BNSF asked DL 19 to negotiate regarding this rule, nor did anyone give DL 19 any advance notice that you intended to implement such a rule.

Given the breadth of your rule and its wide intrusion on all employees' personal medical lives, I appreciate your prompt response on or before January 25, 2012.

Sincerely,

JAM LEGAL DEPARTMENT

By: /s/ Carla M Siegel

DEPUTY GENERAL COUNSEL

CMS/rc

cc:  GVP Pantoja
      DBR Duncan, DL 19