The federal Occupational Safety and Health Administration (OSHA) is not the only agency that makes rules protecting worker safety and health. Nuclear plants, for example, are subject to the rules of the Nuclear Regulatory Commission (NRC); airlines are subject to safety rules issued by the Federal Aviation Administration (FAA). Railroads, too, have their own safety agency: the Federal Railroad Administration (FRA). These agencies tend to issue rules covering issues specifically connected to their industry, leaving general safety and health regulation to OSHA. A problem sometimes arises when employers working in those industries don’t realize that they are subject not only to the specific industry regulations but also to OSHA rules.
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In 2016, the FRA determined that it had just such a problem: Roadway workers were failing to comply with OSHA health and safety rules, and it was getting them killed. After an incident in April 2016 that resulted in the deaths of two Amtrak employees in Chester, Pennsylvania, the FRA took action to better protect roadway workers.
Two Rules and a Reminder
In June 2016, the FRA published two new rules addressing roadway worker safety. One rule, “Railroad Workplace Safety; Roadway Worker Protection Miscellaneous Revisions (RRR)” (RWP Final Rule), requires job briefings for roadway workers to include information on how to contact the roadway worker in charge, and requires annual training for any train, yard, and engine service individual acting as a roadway worker in charge. It also sets standards for how quickly a work crew can begin working after a train has passed the area, and requires railroads to annually train all roadway workers on their procedures for determining whether it is safe to cross tracks.
The second rule, “Control of Alcohol and Drug Use: Coverage of Maintenance of Way (MOW) Employees and Retrospective Regulatory Review-Based Amendments” (MOW Final Rule), broadens the scope of FRA’s alcohol and drug regulations to cover MOW employees.
But gaps in coverage remained. So on November 28, the FRA published a safety advisory reminding employers that when they are engaged in activities outside the scope of FRA’s safety regulations, they may be required to comply with OSHA’s general industry and construction regulations. Specifically, railroads and railroad contractors may be required to implement policies and procedures mandated by OSHA relating to the working conditions for roadway workers.
OSHA Coverage for Railroad Workers
In certain situations not covered by the FRA, OSHA’s regulations apply to railroads and railroad contractors. The FRA identified factors that contributed to worker fatalities since 2000 that occurred while workers were performing work not covered by FRA regulations. These included ascending or descending; falling objects; electrocution; an unanticipated energy release; slips, trips, and falls; hoisting or lowering an object; off-track equipment striking roadway workers; collisions between roadway maintenance machines and standing trains; highway vehicle collisions (vehicle to vehicle); highway vehicles striking roadway workers; and environmental-related hazards (swarming bees, mudslides, heatstroke, flash floods, etc.).
In general, OSHA require employers to identify and control these hazards by:
- Conducting hazard assessments to identify and address existing conditions that pose safety hazards;
- Conducting job safety briefings before every work activity; and
- Conducting additional job briefings if significant changes occur during the course of the work.
Hazardous Work and ‘Good-Faith Challenges’
In addition, the FRA, in its safety advisory, encourages workers who identify a hazardous situation to use FRA’s “good-faith challenge procedures.” These procedures:
- Guarantee workers the right to refuse to do any work that violates an on-track safety rule.
- Permit a worker to remain clear of the track until the challenged safety issue is resolved, without fear of retribution or retaliation, if the worker believes the on-track safety procedure being used is inadequate for the work being performed.
- Require employers to have written procedures in place to promptly resolve any such challenges.
Railroad employers and contractors must follow good-faith challenge rules when they are performing work regulated by the FRA; the agency encourages them to also follow this procedure for work not covered by the FRA—that is, work that is covered by OSHA.
Need more information on safety in workplaces that fall under more than one regulatory agency? Safety.BLR.com® will help you sort it out.