OMAHA — After Terrence Hersey suffered a stroke on the way home from his railroad job in 2015, he underwent months of therapy to learn how to put words together in sentences and learn to walk again. He had to relearn how to get in and out of a car and how to dress himself before his doctors finally cleared him to return to work without any restrictions.
This recommendation was not good enough for Union Pacific. The railroad decided after reviewing Hersey’s records – but without a medical – that he was unsuitable for his job overseeing stationary car inspections in Chicago because of the risk of him becoming invalid.
“I had a doctor clear me and then Union Pacific didn’t give me any physicals or anything. I felt tossed aside,” Hersey said.
Without his job, his car was seized. He lost his house. He had worked on the railroad for more than 20 years, and finding a job that paid as well as Union Pacific was difficult for Hersey, 50, who now drives a school bus. For his current job, he has had no problem passing an annual medical exam to maintain his commercial driver’s license.
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“I was a 20-year-old man and had worked my way up to supervisor and had management opportunities that I could have taken. Now I make half the money I could winning. It’s like my whole world has gone upside down,” he said.
Hersey is among hundreds of Union Pacific employees who are fighting back with federal lawsuits after losing their jobs due to health issues. Although they represent only a small percentage of the railroad’s more than 30,000 employees, their cases could prove costly for Union Pacific and could hamper the companies’ efforts to fill dozens of open jobs. a time when every railroad in the country is dealing with workers. shortages.
Former Union Pacific workers 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 turn into lawsuits. Seven other cases have been settled.
The lawsuits were originally meant 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 pursued individually. The first cases have now been tried and verdicts of over $1 million have been reached in all three cases.
A spokeswoman for the EEOC said it could not say whether it was investigating allegations against Union Pacific. However, one of the attorneys representing the plaintiffs, Jim Kaster, said the EEOC was conducting ongoing investigations into the railroad’s practices.
“What makes this case so egregious is the top-down planning,” said Kaster, who helped handle the class action case. “It’s one thing for a rogue manager at a company to discriminate on the basis of disability. This case is different because this company targeted people with disabilities and disqualified them from work without even examining them and many times without even talk to them.
By the railroad’s own tally, UP said in the original class action arguments that some 7,700 employees had to take what’s called a “fit-for-duty” exam between 2014 and 2018. It’s unclear how many of those people were forced out by unworkable restrictions, but plaintiffs’ attorneys estimate that nearly 2,000 people faced restrictions that kept them from working for at least two years, if not indefinitely.
Union Pacific policies state that anyone with more than a slight risk of “sudden incapacitation” should not work for the railroad because it is dangerous. The railroad has vigorously defended its policy, arguing that its strict rules are designed to protect its workers and the public from the risk of injury or environmental damage if anyone suffers a health emergency that causes a derailment or other accident.
Union Pacific spokeswoman Robynn Tysver said the railroad strives to maintain an inclusive workplace, but “the Americans with Disabilities Act does not diminish the commitment and obligation to Union Pacific to maintain a safe work environment.”
“Union Pacific medical personnel who have a thorough understanding of the unique operational requirements of a railroad assess the medical condition of employees to determine if it interferes with the safe performance of their essential duties in accordance with our medical standards and our obligations under the ADA,” Tysver said. “In addition, Union Pacific often hires third-party medical consultants to assist with medical examinations.”
Yet former workers say Union Pacific ignores their doctors’ advice and makes its own decisions, often when doctors say an employee is cleared to work.
The cases leave Union Pacific potentially facing more than $350 million in damages plus significant legal costs, and government regulators could impose additional penalties if they blame the railroad. That may not do much to hurt the bottom line of a company that reported a profit of $1.84 billion in its last quarter, but the lawsuits could deepen unrest among its current employees. UP workers are already upset that they haven’t had a raise since 2019 and that the railroad has tightened its attendance policy, making it harder to take time off.
Federal law caps most damages in these disability cases in addition to lost wages at $300,000, but plaintiffs’ attorneys say the giant judgments, including a $44 million decision that they won last year in Wisconsin sends a strong message that Union Pacific’s policy is wrong even if the penalty is reduced. In the Wisconsin case, a hearing-impaired conductor was kicked out despite years of successful employment because he couldn’t pass a hearing test while wearing the company’s newly required hearing protection. The railroad would not consider alternative protective equipment.
The cases all argue that Union Pacific discriminates against people with disabilities because of the way it disqualifies employees after reporting certain medical conditions, even though it has little bearing on an employee’s ability to do their work safely. Since 2014, the Omaha, Nebraska-based railroad has required workers to report any time they develop heart disease, have a seizure or develop diabetes that needs to be treated with insulin. Union Pacific also routinely imposes restrictions on employees who fail a color vision test it designed and refuses to employ anyone with a prosthesis, regardless of ability.
When an employee or their supervisor reports a medical condition, Union Pacific furloughs them and requires them to submit medical records for railroad physicians to review to determine fitness for duty. Plaintiffs say the railroad generally makes its decision without physicians examining employees, and Union Pacific ignores recommendations from physicians who treat individuals and clear them to return to work.
An occupational physician who works with the plaintiffs, Kevin Trangle, said he did not believe UP’s policy was wise because it was “more restrictive than necessary and would tend to unnecessarily prevent workers from working”.
Rolando Vasquez said in one of the lawsuits that he lost his job after he was in a motorbike accident because doctors put him on anti-epileptic medication as a precaution. In response, the railroad imposed a series of restrictions that prevented him from working as an electronics 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 an illness that caused seizures after he once passed out because he was dehydrated while battling an illness. The railroad ruled that Joseph Carrillo should not be allowed to drive company vehicles, work around moving trains, or perform jobs that involve “critical decision-making,” so his officials to El Paso agreed that he could no longer repair the locomotives.
JJ Stover lost his job as a runway inspector in Kearney, Nebraska, after suffering a dizzy spell on the job because his doctors called the 2016 incident a mini-stroke or transient ischemic attack, even though he said all the tests they performed on him while he was hospitalized for more than three days came back negative and he no longer felt dizzy.
Stover’s doctors said he could return to work a few weeks later. Soon after, the Army Reserves took his doctors at their word and sent him to Poland for several weeks of training, but Union Pacific spent nine months reviewing his records before deciding he should not be allowed to drive a railroad truck or work around the tracks. .
“It’s just hard to understand,” Stover said.
Another of the workers’ lawyers, Nick Thompson, said the Union Pacific doesn’t seem to consider mitigating details, and applies the same restrictions to every worker who has a condition, whether that person is driving a train or digging. a ditch to install a signal for the railway.
“They treat every condition as if it’s the worst version of it. If you pass out – whatever the cause – they treat it for risk of future events as if it were an unmedicated seizure. It just doesn’t make sense,” Thompson said.