MTA can require employees to provide medical documentation to justify their absences

I am sure the plaintiff in this case has no real understanding why he lost this case. But lost he did, for the kind of technical reasons that only a lawyer can love. The Court of Appeals holds that a worker who missed work because he was taking prescribed narcotics and was therefore unable to work for the railroad can be disciplined because he did not provide management with the proper medical forms.

The case is Lockhart v. MTA Long Island Railroad, issued on February 4. Under the Federal Rail Safety Act, employees cannot be fired for engaging in protected activity. In this case, plaintiff said, the protected activity was refusing to violate safety regulations in not coming to work because he was taking Vicodin after a dental procedure. He was then unable to work because he was taking Oxycodone because of a work-related shoulder injury. The problem was that plaintiff did not turn in the medical form that the MTA required to authorize these absences, resulting in his discipline. Was that discipline in violation of the FRSA? Having heard oral argument in this case in June 2018, it took the Court of Appeals (Winter, Calabresi and Livingston) more than a year to decide it, ruling that the discipline was warranted because plaintiff did not complete the required forms.

The Court summarized the framework for resolving these cases. It applies the same burden-shifting scheme that governs Title VII and other statutory retaliation case, requiring the plaintiff to show that he engaged in protected activity and was disciplined under circumstances creating an inference of retaliation, such as when the discipline takes place shortly after the protected activity. If that prima facie case is made out, to win the case, plaintiff then has to show the employer's reason for the discipline is a pretext for retaliation. Pretext is often shown through evidence that the employer's articulated reason is poppycock.

Plaintiff loses the case because his absences are not protected activity under the statute. His absences were not accompanied with the forms that MTA required employees to complete. The Court says the statute does nor prevent employers from requiring employees to satisfy internal requirements to prove the medical leave is legitimate. The Court states, "it would be rather adventurous to infer an FRSA requirement that a railroad take employees at their word that the reason for a failure to report to work was an easily verifiable doctor-prescribed mind-altering drug." Case law in other medical cases, including the Family and Medical Leave Act and the Americans with Disabilities Act, also permit employers to require employees to turn in medical documentation to support their absences, and that principle now applies under the FSRA.