OSHA administers more than twenty whistleblower protection laws. Under these laws, employees may be protected from retaliation for refusing to perform a task that the employee believes is dangerous or illegal. Whether an employee’s refusal to perform a particular task is protected varies depending on the circumstances and which OSHA-administered whistleblower law is implicated. Below is a summary of some of the work-refusal protections that arise most frequently under OSHA-administered whistleblower protection statutes.
Section 11(c) of the Occupational Safety and Health Act:
Under section 11(c), a person may not retaliate against an employee because the employee refused to perform a task if the following conditions are met:
- The employee had a reasonable apprehension of death or serious injury if the task were performed;
- The employee’s refusal was in good faith;
- The employee had no reasonable, safe alternative assignment;
- There was insufficient time to have Federal or State OSHA or another agency conduct an inspection or where such an inspection had already taken place; and,
- Where possible, the employee sought from the employer but was unable to obtain correction of the dangerous condition.
See Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection Provision. and Clarification of the Work Refusal Standard under 29 CFR 1977.12(b)(2) memo dated January 11, 2016.
The Seaman’s Protection Act (SPA):
Under SPA, a seaman may not be retaliated against for refusing to perform duties ordered by the seaman’s employer if the following conditions are met:
- The seaman had a reasonable apprehension that performing such duties would result in serious injury to the seaman, other seamen, or the public;
- The circumstances causing the seaman's apprehension of serious injury must be of such a nature that a reasonable person, under similar circumstances, would conclude that there was a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer; and
- The seaman must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
See Investigator’s Desk Aid to the Seaman’s Protection Act (SPA) Whistleblower Protection Provision.
The Surface Transportation Assistance Act (STAA):
Under STAA, a person may not discharge or in any other manner retaliate against a covered employee for refusing to operate a commercial motor vehicle because:
- Doing so would violate a federal commercial motor vehicle rule related to safety, health, or security or
- Because an employee had a reasonable apprehension of serious injury to himself or to the public related to a vehicle’s safety or security condition. An employee’s refusal to operate a vehicle for this second reason is only considered “reasonable” if a reasonable individual in the circumstances then confronting the employee would conclude that the hazardous safety or security condition establishes a real danger of accident, injury or serious impairment to health.
Note: that for either of these refusals to operate to be protected by STAA, the employee must also have sought from the employer, and been unable to obtain, correction of the hazardous safety or security condition.
See Investigator’s Desk Aid to the Surface Transportation Assistance Act (STAA) Whistleblower Protection Provision.
The Federal Railroad Safety Act (FRSA) and the National Transit Systems Security Act (NTSSA):
Under FRSA and the NTSSA, an employer may not retaliate against an employee for refusing to violate a federal law, rule, or regulation related to railroad/transit safety or security.
An employer is also prohibited from retaliating against an employee for refusing to work when confronted with a hazardous safety or security condition or refusing to authorize the use of any safety- or security-related equipment, track, or structures that present an imminent hazardous safety or security condition, as long as:
- The employee’s refusal is in good faith and the employee has no reasonable alternative to the refusal;
- The employee reasonably believes that the circumstances present an imminent danger of death or serious injury and there is not sufficient time to eliminate the danger; and
- Where possible, the employee has notified the employer of the hazard and the employee’s intention not to perform further work (or not to authorize the use of the hazardous equipment, track, or structures) unless the hazard is corrected.
See Investigator’s Desk Aid to the Federal Railroad Safety Act (FRSA) Whistleblower Protection Provision and Investigator’s Desk Aid to the National Transit Systems Security Act (NTSSA) Whistleblower Protection Provision.
Other statutes provide, either explicitly or through case law, for protection against retaliation for refusing to perform tasks that the employee reasonably believes are unsafe or illegal. For instance, under the following seven laws, an employer may not retaliate against an employee for refusing to perform a task that the employee reasonably believes violates the substantive provisions of those laws. To learn more about these tasks, please click on the following links:
For more information about work refusal protection under a specific OSHA-administered whistleblower protection statute, please see OSHA’s desk aid for the relevant statute.