Iowa Administrative Code › Agency 875 - Labor Services Division › Iowa Occupational Safety and Health › Chapter 9 - Discrimination Against Employees › Rule 875-9.12 - Exercise of Any Right Afforded by the Act

Current through Register Vol. 47, No. 3, July 24, 2024
(1) In addition to protecting employees who
				file complaints, institute proceedings, or testify in proceedings under or
				related to the Act, Iowa Code section
				88.9(3)
				 also protects employees from discrimination
				occurring because of the exercise "of any right afforded by this chapter."
				Certain rights are explicitly provided in the Act; for example, there is a
				right to participate as a party in enforcement proceedings. Certain other
				rights exist by necessary implication. For example, employees may request
				information from the bureau of occupational safety and health of the division
				of labor services of the department of workforce development; such requests
				would constitute the exercise of a right afforded by the Act. Likewise,
				employees interviewed by agents of the commissioner in the course of
				inspections or investigations could not subsequently be discriminated against
				because of their cooperation.
(2)
				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 its
				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 Iowa Code section
				88.6(5),
				or to seek 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 Iowa Code section
				88.9(3)
				 by taking action to discipline an employee
				for refusing to perform normal job activities because of alleged safety or
				health hazards.
(3) However,
				occasions might arise when an employee is confronted with a choice between not
				performing assigned tasks or being subjected 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 be exposed to the dangerous
				condition, the employee would be protected against subsequent discrimination if
				the following conditions are met:
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. The employee,
				where possible, first sought to:
(1) Eliminate
				the danger through resorting to regular statutory enforcement channels, unless
				there has been insufficient time due to the urgency of the situation,
				or
(2) Obtain from the employer a
				correction of the dangerous condition but was unable to do so.