Right of Employees to Refuse Dangerous Work

Date First Published on SafetySmart Compliance: November 9th, 2012
Topics: Discipline |

Refusing to perform the work assigned is a form of insubordination justifying discipline and perhaps termination. At least it is in most cases. When refusal to work is rooted in a legitimate concern for health and safety, the issue becomes more complicated. Here’s an overview of what OSHA has to say about these situations.

OSHA Refusal Rights

The right of employees to refuse dangerous work is addressed in the OSHA regulation that deals with non-discrimination protections, i.e., the ban on disciplining, firing or otherwise adversely treating employees in retaliation for exercising OSHA safety rights (29 CFR 1977).

There’s no OSHA rule expressly giving employees the right to refuse dangerous work. However, as acknowledged by Section 1977(12)(a) of the regulation, the ban on discriminating against employees for the exercise “of any right afforded by this Act,” includes not just express rights but those that exist “by necessary implication.” For example, asking OSHA for information they’re entitled to receive would be an implied right necessary to the right of access to the information.

Is refusing work such an implied right?

No General Refusal Rights

No, says OSHA. According to Section 1977(12)(b) of the non-discrimination regulation:

“[R]eview 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 opportunity to request inspection of the workplace pursuant to section 8(f) 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 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.”

Exception: Emergency Refusal Rights

However, OSHA then goes on to make an exception to the general no refusal right in Section 1977(12)(c). Refusal would be protected against discrimination, says the regulation, if:

[  ] The employee is confronted with a choice between not performing the assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace;

[  ] The employee’s refusal to expose himself to the danger is undertaken in “good faith”;

[  ] The refusing employee has no reasonable alternative to refusing; and

[  ] The condition causing the employee’s apprehension of death or injury is of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that:

[  ] There is a real danger of death or serious injury; and

[  ] There is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels;

These are highly stringent conditions. And there’s a final restriction. Where possible, the employee must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.

Conclusion

Refusing dangerous work is not a legal right granted to employees under OSHA laws except in the most narrow and urgent conditions. But keep in mind that there’s more to life than OSHA. Employees may have broader refusal rights under other safety laws and/or the terms of their collective bargaining agreement.

 

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