the next case on the calendar is lockerbie m t a long island railroad when it comes to the operation of railroads what is more important safety or discipline the answer to that question is found in the text section twenty one zero nine of the federal safety act and the stated purpose of the federal safety act is to quote promote safety in every area of what operations and twenty one on the whistleblower provision promote safety by prohibiting employers rose from disciplining employees who engage in a wide spectrum over a dozen protected safety related protected activities so when interpret ing and applying this important federal remedial safety legislation the northstar must always be few the section as a whole harmonize all of its parts in order to accomplish its overriding purpose to so what happened here you're on or is it that the long island railroad for ten years engaged in deliberate ignorance of the federal safety act for the vice president on down completely ignorant no policy no forms no codes no instruction no training at all and say well we know we've ignored this statute we consider all absences to be sickleave we're going to apply this sick leave policy to all absences and they've he he reported it has received the condition of the fact that he had been prescribed illegal medication and instructed not to work for forty eight hours under the influence of that medication he reported that to the only department on the railroad that was competent to instruct him whether or not to work under that medication the medical department he did that he was prescribed by as an actor he called the medical department he told him it was doing it he followed their all absences say here's a form for a sick leave if you don't fill it out then you're right you're statutory right to have an absence protected is waived it's negated they don't recognise  where you have a medical reason to be out and we will you know we're not going to discipline you for that we just need a record documentation the absence right but but it's not why is that a waiver it because it's not a twenty punished for following a doctor's instructions why isn't it implicit in that that a reasonable way for a company to itself that a doctor's instruction is actually be followed a perfectly proper requirement of that section having nothing to do with a waiver of saying you're accusing me of discipline in a b you're accusing me of being out without a reason and you're disciplining me for no reason and why i can't for company simply ask show that you had a doctors for now is reform reasonable or not as a way of proving that that may be a question but your argument is that they can do nothing but they have to take the person's word that he is following a doctor's order and that seems to me i just don't understand know if your honor that the rare road this is a federal safety statute they have to comply with it the long island has done nothing for ten years if they have a policy if they have a form if they have a code to invoke the statutory rights if they train and instruct managers to say hey this is protected activity if this is what you can do if they enable henry lockhart employees to invoke their rights under an f or i say policy forming code fine that's what should happen but this is safety this is sick leave it's not a federally protected statute or absence try to understand your argument is that the form that they had filled out was not a proper form or was not a proper way for them to assure themselves that this was following doctor's orders i'm sticking just to see to right because it takes for half your argument it's a sickly form ok it doesn't say ok i dis is a clerk who's  filing papers versus a locomotive excuse me the fact that it is a sick leave form does not necessarily mean that it isn't a perfectly appropriate way for them to be assured you are actually following doctor's orders there may be other forms and but the fact that it is a sick leave form does not in itself mean that it isn't an appropriate requirement maybe w need is to find out whether visitors an appropriate way of finding that out but i don't see how you can be arguing that because this wasn't written up for the stack you that this isn't something that they have a right  to it's that we're not saying that this is unlimited sickly that's not that's not what the twenty one zero nine does if you have a medical condition that threatens the safety of operations then that should be a protected safety absence but a clerk filing papers in a filing cabinet is not the same as a locomotive engineer with the lives of thousands of people in his hands there should be a policy in place a form that employee can invoke and have the doctor confirm that this is indeed a safety absence not just some sickly vaccines that doesn't have anything to do with safe operations the robot here for ten years deliberate ignorance they've just ignored it and if put employees in the business unit choosing between protecting their livelihoods or protecting the lives of passengers protecting their careers their livelihood versus protecting passengers lives and the passengers in that train want us to discuss the broadest issue of great policy cause i'm just looking at the particular claim and whether this person has made out his claim that he was disciplined because he was following a doctor's order i'm just looking at it very narrowly and well the whole discussion it isn't only you today mr good because the other side in very brief and you're just as broad but you know basically we decide cases we don't decide but do if i may in this case he reported the condition to the medical department of the railroad and followed their instructions why isn't that sufficient that's knowledge given to road of a protected activity because they've ignored the law they don't coordinate that information amongst the transportation labor and so they come well you know we discipline him for his safety absence but we're ignorant because we have no knowledge the medical apartment never communicated to us that cannot be a valid defen i will focus on this one individual and this one case and this one individual henry lockhart did not meet the standards to be protected under the federal railroad safety  t for several reasons the first reason is that he did not engage in any protected activity he has potentially three claims here as i noted in my brief  for not doing that ok that is unless the form requirement why isn't that in game ok before we even get to the form requirement there are it two courts of appeals already who have made clear that c two applies only when you're following the treatment instructions of a treating physician for one and on the job injury or incident so already it he's not that isn't in the statue it is not in the statute it may be you know it may be very may not but that becomes the secondary question this very difficult issue we were you have the department of labor taking one position and two courts of appeal taking another one but if your argument is the dispersant was deprived was disciplined because he didn't show adequately bit a doctor or did it why do we need to get into that well that's only number point one of why the statute does not apply to this individual secondly that be true of the shoulder related injury well if we look at the doctors know it's the doctor said if we if we accept your interpretation of the doctor's notes said he had a two thousand and ten work related to me injury and two thousand and twelve soldiers shoulder surgery so yes it should apply there is well because the doctor's note itself doesn't refer to an on the job shoulder injuries so that's point one and that point one for both for the any dough that these injuries the shoulder and so on were there why doesn't the doctor have to speak to that if there is no doubt that the injury was a work related because they're giving information to the railroad to make a decision on how to proceed so let's assume for argument's sake that this doctor's note even came before the apps it says and before the discipline which it didn't it which it did not which is another one of the important points here but you have the long island railroad a big organization getting information and trying to make a decision on had or a counsel said there is deliberate indifference from the long island railroad that is not true we know the statute we've spend years trying to interpret the statute try to interpret it in a way to make sure that we're not doing anything that violates the statute first statute that's not written the best way following up on the case law going to conferences  into it it doesn't give guidance there's the it's not just the statute regular there are regulations that we talk about the family and medical leave act for instance there is regulations there's guide in and it helps the all employers determine how to proceed that does not come out of this statute so the long island railroad as best it can and is trying to determine how to proceed to protect it to cloy ease and also protect passengers having people able to operate trains so that we don't have to call all the people on overtime who may be tired to do  the injury was not work relate it it's a sickly but it's a sickly if federal railroad safety act case where we're complying with the law while also trying to make sure we're getting the information  none of these subsections apply to non work related illnesses but i'll go beyond that to the next thing is that you mention a two so a two refusing to violate an f r a regulation what he's saying is he himself is an f r a regulation so his argument the railroad did anything it's that if he came to work and operated a train he would be violating get out the night before and shows up at work the next day he is a hazard in a safety  take that to the next step which is he got drunk the night before he took illegal substances the night before he stayed up late watching t v the night before so many things  try to understand is your argument that the railroad didn't kill him to operate the train while under drugs or alcohol and if they had told him to do vatanen he had protected activity the statute is meant to make sure the railroad the railroad property the railroad trains that that they're not violating any f r a regulations if you see something wrong with the train you have to tell someone and you can't be punished for it hey i go back to the form because that's seems to me an awfully important thing i'd like to know whether the form that you have to show that somebody is actually following doctor's orders is an appropriate form a reasonable because it may have been written to have something else in mind if it is a proper form but i want to know whether it is a proper form for for filling that which is to be obligation that the statute puts on you that's for question i'm asking you to it is an absolutely proper form because without that form the railroad would have no the fact that it is without that form means that you have a right to have a form it doesn't mean that this form is a proper one if the form were to ask somebody to do it we've been twenty four hours or were to do it in a way that might be relevant to something else but would impose an undue burden here then a form would not be a proper form i want to know whether before as written and what it requires mr lockhart to do is a perform for giving you the information you need to know whether you are complying with the statute when it is proper there's been no argument that the form doesn't get didn't give mr lockhart enough time or any other employee grounds for the district court went on to go back and send it back to the district form and say it to the court and say look at this form and he's a reasonable form that might be something we could do to find out whether  did what you what you say you have a right to know right and the district court in they spoke about the form in the usefulness of  document as the court below said it's used to verify medical absences that are common practice among railroad it advances the purpose of the f r i say to ensure that  not take action against employees who would now they know are absent because of orders or treatment plans of physicians here long island railroad assuming all of this the subtext is apply that to this situation the long island railroad found out about the absences not only after the absence but found out about the absence after they took disciplined well what we say was a disciplinary action f argues that the form is unworkable or burden some because he has a treatment regimen that says on an ongoing basis he should take opioids as needed essentially and in this would impose a need to get a doctor's note for each time that's the reason for the absence so the way they have it out he's been so now he's taking these opioids for years and as i mentioned and they are taking the opioids well after the expiration date of this is now for the rest of his career potentially he could say ten years down the road if i took an opioid last night from something that happened ten years ago i'm not coming to work to that to me cannot be what this well that is your doctor would say even bovis happened ten years ago doctors said it in a way that is appropriate and what the form for bad is another matter but if a doctor says ten years ago you were injured in this way and visit injury continues to cause you pain and so every once in a while you have to take an opioid then a person doesn't come to work because of that covers it directly it's as you can't punish him for it and the fact that the prescription is run no is evidence maybe but doesn't tell us where very dubious is following a doctor's orders no and i want to know what is appropriate for you to be sure of it the person is following a doctor's order no he says before  complicated i don't know this is the form the form is in the record it is not too complicated for it employs only preform you're right it is not as into play it wasn't there was no effort to fill it out it comes into play when the letter of cautions go out and and the plaintive says no no there's were sick days i just an ill out the form that's how it comes into this case right but that is the statute can't just allow an employee to do that i know i'm well past my time i had six points in my brief we sped a lot of time on one one f answer your question judge a color p c the sickly form is not a proper f r a form because it doesn't confirm whether or not this medical condition is causing an absence that's related to safety is this medical condition a threat to safe when operations it doesn't ask that it doesn't ask if there is protected activity it doesn't confirm anything there are no effort say forms or policies on the railroad at all there's nothing and they can't use the barney agreement form to merge into a federal statutorily protected absences and section subsection eight says the rights remedies in this section may not be waived by any agreement policy form or condition of employment they're using a non f or a say form and policy to waive or negate an employee's federal statutory  rights as far as the legal if you read c two in conjunction with aid to an employee who follows the instruction of a treating doctor to take a legally prescribed medication is protected and employed decides to get drunk or to shoot heroin or take cocaine on his own he's not protected he's not following a doctor's orders that it's nonsense to say that you're asking us to interpret to buy reading and language from c two and see one that is not in a two but and i'm not i'm not sure that that i've ever i don't know what canon would permit us to well that that the canon that  are cited that you have to read the section as a whole harmonizes sub part still is to accomplish the overriding purpose which is to promote real safety how does it promote real safety for the same medical condition which is a threat to t passengers lives to be protected if it's work related injury but not if it's off related how does that promote safety it doesn't the overriding purpose is the northstar read the sections subsections together harmonize them the medical department every single time he called the medical department he said i've been i'm taking this prescribed medication they said don't work for forty eight hours he didn't now the medical department did nothing to communicate to any other department that protected activity and that cannot be a defense was when you put on twenty but but that's again your honor that's the sickly form has nothing to do with twenty one zero nine it doesn't it doesn't establish the protected activity under twenty one zero nine that it's a safety related absence it could be just a sick form for anything do you make anything of the fact that it has to be oral surgery they rescinded discipline of the basis of something that was not a form that is as to one of the things  disciplined be oral surgery i believe that then when they submitted a doctor's certificate which was not the form they actually rescinded so th acted as if the a form had been submitted but it was not right seven months later they rescinded that oral surgery and immediately replaced it with another based on the work injur form that was needed and what they needed and i'm interested i don't think it's determinative but it is interesting to meet with they didn't require of a form of respect of that that time well they say it is required with respect to something else you don't know what they need is a twenty one zero nine policy forms code instruct train managers he says that they've been dealing with it the legal department maybe but the vice president on down never read it never heard of it never done anything to comply with it or change their policies or procedures this is a deliberate ignorance of a federal safety statute and it cannot be used as a defense when  employee reports a protected activity to the only department capable of instructed him the medical department and then nothing happens no communication no coordination no compliance and they say well you know we discipline for sickleave  since we didn't know we have protect their activity well guess what because of the deliberating thence and in the photo to have any policies or forms give the employees the means to invoke their statutory right and they'll do it but don't use sick leave that's not for twenty twenty one and safety happens thank you both for your argument well argued that's the last case on the calendar to be argued today so i will ask her to adjourn cour