Current through Register Vol. 48, No. 3, March 22, 2024
A. In addition to protecting employees who
file complaints, institute proceedings, or testify in proceedings under or
relating to the Act, Section
41-15-510
also protects employees from discrimination occurring because of the exercise
"of any right afforded by such statutes, rules, or regulation". Certain rights
are explicitly provided in the statutes, rules, or regulations; for example,
there is a right to participate as a party in enforcement proceedings (See R.
71-410K
of Subarticle 4). Certain other rights exist by necessary implication. For
example, employees may request information from the Division of Occupational
Safety and Health: such requests would constitute the exercise of a right
afforded by the Act. Likewise, employees interviewed by agents of the
Commissioner in the course of inspections or investigations could not
subsequently be discriminated against because of their cooperation.
B.
(1) On
the other hand, review of the Act and examination of the legislative history
discloses that, as a general matter, there is no right afforded by the Act
which would entitle employees to walk off the job because of potential unsafe
conditions at the workplace. Hazardous conditions which may be violative of the
Act will ordinarily be corrected by the employer, once brought to his
attention. If corrections are not accomplished, or if there is dispute about
the existence of a hazard, the employee will normally have an opportunity to
request inspection of the workplace pursuant to Section
41-15-260
of the Act, or to seek the assistance of other public agencies which have
responsibility in the field of safety and health. Under such circumstances,
therefore, an employer would not ordinarily be in violation of Section
41-15-510
by taking action to discipline an employee for refusing to perform normal job
activities because of alleged safety or health hazards.
(2) However, occasions might arise when an
employee is confronted with a choice between not performing assigned tasks and
subjecting himself to serious injury or death arising 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 would be
protected against subsequent discrimination. The condition causing the
employee's apprehension of death or injury must be of such a nature that a
reasonable person, under the same circumstances then confronting the employee,
would conclude that there is a real danger of death or serious injury and that
there is insufficient time, due to the urgency of the situation, to eliminate
the danger through resort to regular statutory enforcement channels. In
addition, in such circumstances, the employee, where possible, must also have
sought from his employer, and been unable to obtain, a correction of the
dangerous condition.
