Under the Occupational Safety and Health Act, employees are protected against discrimination for engaging in protected activity that is generally recognized, including filing complaints with the Occupational Safety and Health Administration (OSHA); instituting an OSHA inspection; participating in an OSHA inspection, including OSHA interviews; and testifying against the employer in an OSHA enforcement proceeding.
These rights are protected under Section 11(c) of the act. Under a specific OSHA regulation, 29 Code of Federal Regulations (CFR) Part 1977.12, which describes these rights, it is clear under the act there is no stated protected right that would entitle an employee to walk off the job because of potential unsafe conditions at the workplace.
The Secretary of Labor has issued a little known subpart of this regulation, 29 CFR 1977.12(b)(2), that does recognize, however, that occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting him/herself to serious injury or death from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he/she would be protected against subsequent discrimination.
In order to be protected, the employee’s apprehension of death or injury must meet several criteria:
• It must be of such a nature that a reasonable person under the circumstances confronting this employee would conclude there is a real danger of death and serious injury, and
• There is insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels (i.e., contacting OSHA to seek assistance), and
• The employee, where possible, must have sought from his employer, and been unable to obtain, a correction of the dangerous condition.
While this right is available, it is apparent that instances of when an employee can qualify for this protection will be infrequent. Since 1980, in the decision of the Supreme Court of the United States in Whirlpool Corp. v. Marshall, this right has been recognized. In that case, two employees refused to climb into a suspended overhead screen to remove fallen appliance parts, claiming that it was unsafe. In fact, several employees had previously fallen through the screen and one employee had died as a result of a fall. After their refusal, the employees were ordered to punch out without working or being paid for the remaining six hours of the shift. They also received written reprimands.
The court clearly recognized the right to avoid workplace conditions that employees believe pose grave dangers to their own safety. There is a risk to the employee, however, as the court held that any employee who acts in reliance on the regulation may be discharged or reprimanded if a court subsequently finds that the employee acted “unreasonably” or in “bad faith” in refusing to work.
National Labor Relations Act
In addition to rights under OSHA, the employee may be protected under the National Labor Relations Act (NLRA). Under the NLRA, employees have the right to strike over what they “honestly” believe to be unsafe and unhealthy work conditions under Section 8(a)(1). In National Labor Relations Board v. Tamara Foods, Inc., the U.S. Court of Appeals for the Eighth Circuit decided a case in which 11 employees at a food processing plant refused to work and clocked out because they believed that they were being exposed to ammonia fumes. They claimed that the fumes caused them to experience nausea, burning sensations in their noses and throats, headaches, tightness in their chests, and difficulty breathing.
The court found that the employees had engaged in “concerted activity” (or a strike) protected under Section 7 of the NLRA. The employer argued, unsuccessfully, that the employees had not submitted facts under Section 502 of the Labor Management Relations Act (29 United States Code, Section 143) that established there was “objective evidence” of abnormally dangerous conditions at work or that the employees were acting in good faith when they quit work.
Recommendations
In view of these two statutory protections afforded to employees, it is important that employers be prepared to respond properly in a situation where an employee refuses to work because of an alleged imminent danger condition. The following are recommendations to address such potential complaints.
• Initially, in order to defeat the potential discrimination claim, the employer should train its supervisors to be aware of such complaints and the need to respond in a timely fashion to the employee complaint.
• The supervisor must be aware that the employee does not need to use any magic language to invoke these rights.
• The supervisor must conduct a real time inquiry of the employee’s complaint, e.g., what the workplace condition is creating the hazard (e.g., a machine, chemical, etc.). Why does the employee believe that it poses a grave threat of imminent danger to the employee’s safety or health (e.g., is there a prior history of accidents or near misses; is the employee experiencing health affects)?
• The supervisor should inquire as to the employee’s recommendations as to how to correct the hazard and, if they are feasible, consider prompt action to correct them, thus eliminating the basis for the complaint.
• The supervisor should consider what objective actions can be taken, such as having a maintenance person demonstrate to the complaining employee the safe operation of the equipment in issue, to establish that there is no hazard.
• The supervisor should be counseled to contact human resources or senior management to discuss the actions taken or to be taken by the company that will establish that there is no hazard or imminent danger and that the employee’s apprehension is not “objectively” reasonable.
• Once these actions are taken and confirmed, the employer is in a position to order the employee to work and if the employee continues to refuse such orders, the employer has a lawful basis for imposing discipline and not violating protected rights.
If the employer takes the foregoing actions in a timely, reasonable manner, it will be in a position to defend against a potential claim of discrimination and to prevail with enforcement of its disciplinary action.
Labor and the Law - December 2006 Render