F.R.A. Information/Interpretations

F.R.A. Interpretation of Supervision Entering Exam Room of an Injured Employee

Federal Railroad Administration
49 CFR Part 225
Railroad Accidents/Incidents: Reports

Classification, and Investigations

AGENCY: Federal Railroad Administration (FRA), Department of Transportation.

ACTION: Notice of interpretation.

SUMMARY: FRA is issuing this notice of interpretation to inform interested parties of its application and enforcement of the harassment or intimidation provisions contained in 49 CFR part 225, specifically relating to situations in which a supervisor or other railroad official accompanies an injured employee into an examination room. This notice of interpretation informs the regulated community as to when such behavior constitutes harassment or intimidation calculated to discourage or prevent the reporting of an accident, incident, injury or illness. This document is not intended to address or impact statutory provisions related to providing ‘‘prompt medical attention,’’ as enforcement of those provisions fall within the jurisdiction of the U.S. Department of Labor.



Douglas H. Taylor, Staff Director, Operating Practices Division,

Office of Safety Assurance and Compliance, FRA,

1200 New Jersey Avenue, SE., RRS–11,

Mail Stop 25, Washington, DC 20590

(telephone 202–493–6255); or Zeb

Schorr, Trial Attorney, Office of Chief

Counsel, FRA, 1200 New Jersey Avenue

SE., RCC–11, Mail Stop 10, Washington,

DC 20590 (telephone 202–493–6072).



I. Background

Section 225.33(a) of Title 49 of the Code of Federal Regulations requires each railroad to ‘‘adopt and comply with a written Internal Control Plan’’ addressing the railroad’s policies and procedures regarding accident/incident reporting. This section further requires that such Internal Control Plans include, at a minimum, a ‘‘policy statement declaring the railroad’s commitment * * * to the principle, in absolute terms, that harassment or intimidation of any person that is calculated to discourage or prevent such person from receiving proper medical treatment or from reporting such accident, incident, injury or illness will not be permitted or tolerated * * *.’’ The FRA Guide for Preparing Accident/Incident Reports also notes that ‘‘many railroad employees

fail to disclose their injuries to the railroad or fail to accept reportable treatment

from a physician because they wish to avoid potential harassment from

management or possible discipline that is sometimes associated with the

reporting of such injuries.’’ FRA Guide, Ch. 1, p.8. The FRA Guide goes on to

state that supervisory personnel and mid-level managers in some instances

“are urged to engage in practices which may undermine or circumvent the reporting

of injuries and illnesses.’’ Id. FRA is aware of incidents in which a supervisor or

other railroad official (hereinafter collectively referred to as the ‘‘supervisor’’) has

accompanied an injured employee into an examination room, or other room in

which the injured employee received medical treatment (hereinafter collectively

referred to as the ‘‘examination room’’). While FRA is concerned that injured

employees in such situations may not receive complete or prompt medical

treatment, responsibility for ensuring that such treatment is afforded has been

assigned by Congress to the Department of Labor. FRA is concerned that when

accompanied by a supervisor an injured employee may be discouraged or

otherwise prevented from reporting an accident, incident, injury or illness.

Similarly, a supervisor may influence the type or extent of medical treatment

afforded the employee in an effort to affect the reportability of that injury.

Although concerns have been expressed as to the need for a railroad to determine

the extent of an employee’s injuries, FRA does not believe that such concerns

outweigh the potential pitfalls and problems associated with the practice of

having supervisors accompany injured employees while they receive care from

their physicians. Moreover, physicians are in the best position to evaluate the

health of injured employees and the presence of a supervisor during such

examinations would not, in most cases, add any value to the treatment of an

employee and would, in general, be a distraction to both the employee and the

physician. The purpose of this document is to articulate a general principle regarding

what behavior constitutes harassment or intimidation in violation of

§ 225.33(a)(1) in the particular context of supervisors accompanying injured

employees in examination rooms. The interpretation contained in this notice

reflects the longstanding position of FRA regarding this practice. This

document is not intended to address or impact the meaning or application of

the statutory provisions contained in 49 U.S.C. 20109 related to providing

‘‘prompt medical attention,’’ as enforcement and application of those

provisions fall within the jurisdiction of the U.S. Department of Labor.


II. Interpretation

A. General Principle

Harassment and intimidation occur in violation of § 225.33(a)(1) when a

railroad supervisor accompanies an injured employee into an examination

room, unless one or more of the exceptions listed in section II(B) of this

notice exists.


B. Exceptions

FRA recognizes that there are limited circumstances in which it is

appropriate, and indeed preferable, for a supervisor to accompany an injured

employee into an examination room. Thus, FRA believes that limited

exceptions to the general principle articulated in section II(A) of this notice

are necessary. Consequently, FRA recognizes the following limited


(1) The injured employee issues a voluntary invitation to the supervisor to

accompany him or her in the examination room. The injured employee

must issue this invitation freely, without coercion, duress, or

intimidation. For example, an injured employee may seek the attendance of a

supervisor where the supervisor is a friend. This exception does not encompass

invitations issued by third parties, including physicians, unless the invitations

are made pursuant to the request of the injured employee. (2) The injured

employee is unconscious or otherwise unable to effectively communicate

material information to the physician and the supervisor’s input is needed to

provide such material information to the physician. In these circumstances, the

supervisor is assisting the injured employee in providing information to

the physician so that the injured employee may receive appropriate and

responsive medical treatment.


14092 Federal Register / Vol. 74, No. 59 /

Monday, March 30, 2009 / Rules and Regulations

Issued in Washington, DC, on March 24,


Jo Strang,

Acting Deputy Administrator, Federal

Railroad Administration.

Class A - Wood, paper, cloth, trash, plastics

Solid combustible materials that are not metals. (Class A fires generally leave an Ash.)


Class B - Flammable liquids: gasoline, oil, grease, acetone

Any non-metal in a liquid state, on fire. This classification also includes flammable gases. (Class B fires generally involve materials that Boil or Bubble.)


Class C - Electrical: energized electrical equipment

As long as it's "plugged in," it would be considered a class C fire. (Class C fires generally deal with electrical Current.)


Class D - Metals: potassium, sodium, aluminum, magnesium

Unless you work in a laboratory or in an industry that uses these materials, it is unlikely you'll have to deal with a Class D fire. It takes special extinguishing agents (Metal-X, foam) to fight such a fire.

Fire Extinguishers

Most fire extinguishers will have a pictograph label telling you which classifications of fire the extinguisher is designed to fight.

Water (APW) Extinguishers

APW stands for "air-pressurized water." APWs are large, silver extinguishers that are filled about two-thirds of the way with ordinary tap water, then pressurized with normal air. In essence, an APW is just a giant squirt gun.

APWs stand about 2 feet tall and weigh approximately 25 pounds when full.

APWs are designed for Class A (wood, paper, cloth) fires only.

Never use water to extinguish flammable liquid fires. Water is extremely ineffective at extinguishing this type of fire, and you may, in fact, spread the fire if you try to use water on it.

Never use water to extinguish an electrical fire. Water is a good conductor, and there is some concern for electrocution if you were to use water to extinguish an electrical fire. Electrical equipment must be unplugged and/or de-energized before using a water extinguisher on it.

APWs extinguish fire by taking away the "heat" element of the fire triangle.

APWs will be found in older buildings, particularly in public hallways, as well as in Residence Halls. They will also be found in computer laboratories. It is important to remember, however, that computer equipment must be disconnected from its electrical source before using a water extinguisher on it.

Carbon Dioxide Extinguishers

Carbon Dioxide extinguishers are filled with non-flammable carbon dioxide gas under extreme pressure. You can recognize a CO2 extinguisher by its hard horn and lack of pressure gauge. The pressure in the cylinder is so great that when you use one of these extinguishers, bits of dry ice may shoot out the horn.

CO2 cylinders are red and range in size from 5 lbs to 100 lbs or larger. In the larger sizes, the hard horn will be located on the end of a long, flexible hose.

CO2s are designed for Class B and C
(flammable liquid and electrical) fires only.

Carbon Dioxide is a non-flammable gas that extinguishes fire by displacing oxygen, or taking away the oxygen element of the fire triangle. The carbon dioxide is also very cold as it comes out of the extinguisher, so it cools the fuel as well. CO2s may be ineffective at extinguishing Class A fires because they may not be able to displace enough oxygen to successfully put the fire out. Class A materials may also smolder and re-ignite.

CO2s will frequently be found in laboratories, mechanical rooms, kitchens, and flammable liquid storage areas.

Dry Chemical Extinguishers

Dry Chemical Extinguishers come in a variety of types. You may see them labeled:

  • "DC" short for "dry chem"
  • "ABC" indicating that they are designed to extinguish class A,B,and C fires, or
  • "BC" indicating that they are designed to extinguish class B and C fires.

At OSU, "ABC" fire extinguishers are filled with a fine yellow powder. The greatest portion of this powder is composed of monoammonium phosphate. Nitrogen is used to pressurize the extinguishers.

ABC extinguishers are red and range in size from 5 lbs to 20 lbs on campus.

Identifying The Types of Dry Chemical Extinguishers Are Located in Your Area

It is extremely important to identify which types of dry chemical extinguishers are located in your area.

Read the labels and know their locations! You don't want to mistakenly use a "BC" extinguisher on a Class A fire, thinking that it was an "ABC" extinguisher.

An "ABC" extinguisher will have a label like this, indicating that it may be used on class A, B and C fires.

Dry chemical extinguishers put out fire by coating the fuel with a thin layer of dust, separating the fuel from the oxygen in the air. The powder also works to interrupt the chemical reaction of fire, so these extinguishers are extremely effective at putting out fire.

These extinguishers will be found in a variety of locations. New buildings will have them located in public hallways. They may also be found in laboratories, mechanical rooms, break rooms, chemical storage areas, offices, university vehicles, etc.

Dry chemical extinguishers with powder designed for Class B and C fires may be located in places such as commercial kitchens or areas with flammable liquids.


Fires can be very dangerous and you should always be certain that you will not endanger yourself or others when attempting to put out a fire. For this reason, when a fire is discovered:

  • Assist any person in immediate danger to safety, if it can be accomplished without risk to yourself.
  • Activate the building fire alarm system or notify the fire department by dialing 911 (or designating someone else to notify them for you). When you activate the building fire alarm system, it will automatically notify the fire department and get help on the way. It will also sound the building alarms to notify other occupants, and it will shut down the air handling units to prevent the spread of smoke throughout the building.
  • Only after having done these two things, if the fire is small, you may attempt to use an extinguisher to put it out.

However, before deciding to fight the fire, keep these rules in mind:

Know what is burning. If you don't know what is burning, you don't know what type of extinguisher to use. Even if you have an ABC extinguisher, there may be something in the fire that is going to explode or produce highly toxic smoke. Chances are, you will know what's burning, or at least have a pretty good idea, but if you don't, let the fire department handle it.

The fire is spreading rapidly beyond the spot where it started. The time to use an extinguisher is in the incipient, or beginning, stages of a fire. If the fire is already spreading quickly, it is best to simply evacuate the building, closing doors and windows behind you as you leave.

Do Not Fight the Fire If:

You don't have adequate or appropriate equipment. If you don't have the correct type or large enough extinguisher, it is best not to try to fight the fire.

You might inhale toxic smoke. If the fire is producing large amounts of smoke that you would have to breathe in order to fight it, it is best not to try. Any sort of combustion will produce some amount of carbon monoxide, but when synthetic materials such as the nylon in carpeting or foam padding in a sofa burn, they can produce highly toxic gases such as hydrogen cyanide, acrolein, and ammonia in addition to carbon monoxide. These gases can be fatal in very small amounts.

Your instincts tell you not to. If you are uncomfortable with the situation for any reason, just let the fire department do their job.

The final rule is to always position yourself with an exit or means of escape at your back before you attempt to use an extinguisher to put out a fire. In case the extinguisher malfunctions, or something unexpected happens, you need to be able to get out quickly, and you don't want to become trapped. Just remember always keep an exit at your back.

When using a fire extinguisher, remember PASS

It's easy to remember how to use a fire extinguisher if you can remember the acronym PASS, which stands for Pull, Aim, Squeeze, and Sweep.