Tenn. Comp. R. & Regs. 0800-01-08-.04 - EXERCISE OF ANY RIGHT AFFORDED BY THE ACT

(1) In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the Act, T.C.A. § 50-3-409 also protects employees from discrimination occurring because of the exercise "of any right afforded by this chapter" (Chapter 3 of Title 50, T.C.A.). Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (T.C.A. § 50-3-307(b)). Certain other rights exist by necessary implication. For example, employees may request information from the Division of Occupational Safety and Health, Department of Labor and Workforce Development, such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Commissioner of Labor and Workforce Development in the course of inspections or investigations conducted pursuant to the Act could not subsequently be discriminated against because of their cooperation.

(2) On the other hand, review of the Act and the Federal Occupational Safety and Health Act of 1970 ( 29 USC 650 - 683, P.L. 91-596, after which the Act was patterned) and examination of the legislative history of each, discloses that, as a general matter, there is no right afforded by either the State or Federal 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 or standards promulgated pursuant thereto will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is a dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to T.C.A. § 50-3-409, 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 T.C.A. § 50-3-409 by taking action to discipline an employee for refusing to perform normal job activities because alleged safety or health hazards.

(3) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or 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 provided:

(a) the condition causing the employee's apprehension of death or injury must be 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;

(b) that a reasonable person would conclude that, due to the urgency of the situation previously concluded to pose a real danger of death or serious injury, there is insufficient time to eliminate the danger through resort to regular statutory enforcement channels provided by T.C.A. §§ 50-3-304 and 50-3-918; and

(c) the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition upon which his apprehension of death or injury is predicated.

Notes

Tenn. Comp. R. & Regs. 0800-01-08-.04

Original rule filed March 31, 1983; effective June 15, 1983. Amendment filed November 25, 1983; effective February 13, 1984. Amendment filed October 19, 1992; effective January 28, 1993.

Authority: T.C.A. §§ 50-3-304, 50-3-409, and 50-3-918.