BROTHERHOOD OF LOCOMOTIVE ENGINEERS

Western Region General Committee of Adjustment

                                                                                                   February 10, 2003

                                                                                                    22056

 TO:                  Vice Chairmen    }             

                       Local Chairmen   }      Western Region

 FROM:             Tim Donnigan      }

 RE:                   EMPLOYEE ASSISTANCE PROGRAM ‑ CONFIDENTIALITY

 Reference previous memos to our WRGCA Local Chairmen which included copy of various correspondence exchanged in connection with Union Pacific Railroad's Employee Assistance Plan (EAP) and the alleged violation of confidentiality requirements imposed by FRA and the Code of Federal Regulations.

 Attached, please find [and pay close attention to] copy of President Hahs' letter dated January 22, 2003 addressed to BLE System General Chairmen concerning this matter which reads in part as follows:

 "Under date of December 17, 2002, Mr. Rutter deflected a number of the points I raised by noting that the `Confidentiality and Information' regulations set forth in 49 C.F.R. Part 40, related to the Department of Transportation Programs, had been amended in 1998. At that time, 49 C.F.R. §40.323 changed the confidentiality policy to allow release of `relevant portions of [employee] information in adversarial proceedings,' which include FELA lawsuits initiated by or on behalf of the concerned employee. Having said this, the FRA's Administrator informed us that this exception does not apply to the employee's treatment for among other things, money problems or stress, or the treatment of the employee's spouse, family members or relations, which actions arose from the employee's treatment for alcohol/substance abuse. 

In regard to those qualifications, FRA found that UP has not fully complied with the regulations. Mr. Rutter, therefore, `has accordingly advised UP to revise its EAP information to clarify its confidentiality policy.'

Based upon this information about the exception in `adversarial proceedings' and Rutter's suggesting that BLE members should be made aware that only certain types of employee EPA [sic] records are protected under FRA and DOT regulations, I believe each of you should give consideration to distributing this information to your members on UP so they can determine if the UP's EAP policies fit their individual situations and needs." (emphasis added) 

It is odd that Carrier mysteriously (or conveniently) failed to notify its employees of the 1998 change to the Code of Federal Regulations. By whatever means the change was orchestrated, EAP credibility in terms of confidentiality has been significantly diluted, especially in FELA injury cases.

Though we've yet to be notified by Union Pacific it has corrected its EAP Policy, it is imperative that we share this information with our members so they are informed about the changes to the Code of Federal Regulations.

 WRGCA NOTE/ADDITIONAL INFO: To view Hahs complete letter referred to above click HERE