In addition to protecting employees who file complaints, institute proceedings, or testify in
proceedings under or related to the Act, section 11(c) also protects employees from discrimination occurring because of the exercise "of any right
afforded by this Act." Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement
proceedings (sec. 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational
Safety and Health administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by
agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their
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 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.
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.
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 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.
[38 FR 2681, Jan. 29, 1973 as amended at 38 FR 4577, Feb. 16, 1973]