Disqualified for disabilities, railway workers fight back

OMAHA, Neb. — After Terrence Hersey suffered a stroke on his way home from his railroad job in 2015, he underwent months of therapy to learn how to put words together into sentences and learn to walk again. He had to relearn how to get in and out of a car and get dressed before his doctors finally released him to return to work without restrictions.

That recommendation wasn’t good enough for Union Pacific. The railroad, after reviewing Hersey’s records—but without a doctor’s examination—considered that he was unfit for his job of overseeing inspections of stationary train cars in Chicago because of the risk that he would become incapacitated.

“I had a doctor exonerate me, and then Union Pacific didn’t give me any kind of physicality or anything. I felt thrown to the side,” Hersey said.

Without his job, his car was impounded. He lost his house. He had worked on the railroad for over 20 years and it was difficult to find a job that paid as well as Union Pacific for 50-year-old Hersey, who now drives a school bus. Before his current job, he has had no problem taking an annual medical test to keep his commercial driver’s license.

“I was a 20-year-old man and had worked my way up to supervisor and had some management opportunities that I could have achieved. Now I’m making half the money I could make. It’s like my whole world went upside down,” he said. he.

Hersey is one of hundreds of Union Pacific employees fighting back federal lawsuits after losing their jobs due to health problems. Although they make up only a small percentage of the railroad’s more than 30,000 employees, their Union Pacific businesses can prove costly and hinder the companies’ efforts to fill numerous vacancies at a time when all The country’s railways have to deal with workers. deficits.

Former Union Pacific employees have filed at least 15 other federal lawsuits and more than 200 other complaints are pending with the Equal Employment Opportunity Commission that are likely to result in lawsuits. Seven other cases have been settled.

The lawsuits were originally supposed to be part of a class-action lawsuit filed by former employees, but a federal appeals court ruled in 2020 that the complaints should be dealt with individually. The first few cases have now been tried, and all three have sent judgments worth more than $1 million.

An EEOC spokeswoman said it could not comment on whether it is investigating allegations against Union Pacific. However, one of the attorneys representing the plaintiffs, Jim Kaster, said the EEOC has ongoing investigations into the railroad’s practices.

“What makes this case so blatant is the top-down planning,” said Kaster, who helped handle the class-action case. “It’s one thing for a rogue manager in a company to discriminate on the basis of disability. This case is different because this company targeted people with disabilities and denied them access to work without even examining them and often without even talking to them.”

According to the railroad’s own count, UP said in arguments in the original class-action lawsuit that about 7,700 employees had to undergo a so-called “fitness-for-duty” assessment between 2014 and 2018. It’s not clear how many of those people were forced by unworkable disabilities, but plaintiffs’ attorneys estimate that nearly 2,000 people faced disabilities that kept them out of their jobs for at least two years, if not indefinitely.

Union Pacific policy says anyone with more than a small chance of “sudden disability” should not work for the railroad because it is dangerous. The railroad has defended its policies vigorously, arguing that the strict rules are designed to protect its employees and the public from injury risks or environmental damage if someone experiences a health emergency that causes a derailment or other accident.

Union Pacific spokeswoman Robynn Tysver said the railroad is committed to maintaining an inclusive workplace, but “the Americans with Disabilities Act does not diminish Union Pacific’s commitment and obligation to maintain a safe work environment.”

“Union Pacific medical personnel who have a thorough understanding of a railroad’s unique operational requirements assess employees’ medical conditions to determine if it prevents them from safely performing their essential duties in accordance with our medical standards and obligations under the ADA,” Tysver said. “In addition, Union Pacific often engages outside medical advisors to assist with medical assessments.”

Still, former employees claim that Union Pacific ignores their doctors’ advice and makes their own decisions, often when doctors have said an employee is allowed to work.

The cases mean Union Pacific may have to pay more than $350 million in damages plus significant legal fees, and state regulators could impose additional fines if the railroad defaults. That may not dent the bottom line for a company that reported $1.84 billion in profit in its most recent quarter, but the lawsuits could add to unrest among current employees. UP workers are already angry that they haven’t had a pay rise since 2019 and that the railways have tightened its attendance policy, making it more difficult to take time off.

Under federal law, most damages in these disability cases are limited to $300,000, excluding lost wages, but plaintiffs’ attorneys say the gargantuan rulings, including a $44 million decision they won in Wisconsin last year, send a strong signal that Union Pacific’s policy is flawed, even if the fine is reduced. In the Wisconsin case, a hearing-impaired conductor was forced to leave home despite years of successful employment because he failed a hearing test while wearing the company’s newly required hearing protection. The railroad would not consider alternative protective equipment.

In all cases, Union Pacific is alleged to discriminate against people with disabilities because of the way employees are disqualified after reporting certain health conditions, even if they have little impact on an employee’s ability to do their job safely. Since 2014, the railroad in Omaha, Nebraska requires employees to report if they develop heart disease, seizures, or develop diabetes that requires insulin treatment. Union Pacific also routinely places restrictions on employees who fail a color vision test it designed and refuses to hire anyone with a prosthetic limb, no matter how skilled they are.

When an employee or his supervisor reports a health condition, Union Pacific puts him on leave and requires that he submit medical records that railroad doctors review to determine their suitability for the job. Prosecutors say the railroad usually makes its decision without doctors examining employees, and Union Pacific is ignoring the recommendations of doctors who treat individuals and have given them permission to return to work.

An occupational health physician working with the plaintiffs, Kevin Trangle, said he doesn’t like UP’s policy because it is “restrictive than necessary and would result in workers being unnecessarily prevented from working.”

Rolando Vasquez said in one of the lawsuits that he lost his job after he had a motorcycle accident because doctors gave him medicine for epilepsy as a precaution. In response, the railroad imposed a series of restrictions that made it impossible for him to work as an electronic technician inspector in Del Rio, Texas, even though he had never had a seizure.

In another case, a diesel electrician said he was treated as if he had a condition that caused seizures after he passed out once from being dehydrated while battling an illness. The railroad ruled that Joseph Carrillo could not drive commercial vehicles, work around moving trains, or have a job that required “critical decision-making,” so his managers in El Paso agreed that he could no longer repair locomotives.

JJ Stover lost his job as a track inspector in Kearney, Nebraska, after becoming dizzy at work because his doctors labeled the incident in 2016 a mini-stroke or transient ischemic attack, though he said all the tests they performed on him while in the hospital for more than three days, came back negative and has not experienced any dizziness since.

Stover’s doctors said he could return to work a few weeks later. Shortly after, the army reserves took his doctors’ word and sent him to Poland for several weeks of training, but Union Pacific spent nine months going through his records before deciding not to drive a railroad truck or work around the tracks. .

“It’s just hard to understand,” Stover said.

Another workers’ attorney, Nick Thompson, said Union Pacific doesn’t seem to consider any mitigating details, and that it applies the same restrictions to any worker who has a condition, whether that person is driving a train or digging a trench to install. a signal for the railway.

“They treat every condition as if it were the worst version of it. If you pass out — regardless of the cause — they treat it to determine the risk of future events as if it were a non-medicated seizure disorder. That just doesn’t make sense,” Thompson said.