Section 11(c) of the Occupational Safety and Health Act of 1970 (“Act"), at 29 U.S.C. § 660(c), offers protection to employees who face retaliation for refusing to work in the face of imminent danger. Section 11(c) of the Act renders the discrimination against or discharge of an employee for exercising "any right" protected under the Act unlawful. 29 U.S.C. § 660(c)(1). The Secretary of Labor promulgated a regulation, codified at 29 C.F.R. § 1977.12, defining certain "rights" which, although not delineated by Section 11(c), are protected under the Act. One such protected right, codified at 29 C.F.R. § 1977.12(b)(2), is an employee's right to refuse to work under conditions the employee apprehends will subject him to serious injury or death.
By virtue of this regulation, where an employee is confronted with a choice of not performing an assigned task or performing the task under apprehension of serious injury or death, Section11(c) protects from subsequent discrimination or discharge the employee who, having no reasonable alternative, refuses to perform the assigned task. The employee's apprehension of serious injury or death is measured by the standard of a reasonable person under the circumstances. To establish a violation of Section 11(c) the employee's engagement in protected activity need not be the sole reason for the subsequent discharge but "a substantial reason for the action" or if the discharge "would not have taken place `but for' engagement in protected activity." 29 C.F.R. § 1977.6(b)
An employee who is retaliated against for complaining about workplace safety or refusing to work in the face of imminent danger must file a complaint with OSHA within 30 days of the retaliation. The attorneys at Sidkoff, Pincus & Green, located in Philadelphia, Pennsylvania, are experienced in drafting such complaints. If you have experenced employment retaliation, please feel free to contact an attorney at Sidkoff, Pincus & Green via email ([email protected]) or by phone at (215) 574-0600.