South Carolina Code of Regulations › Chapter 71 - DEPARTMENT OF LABOR, LICENSING AND REGULATION-DIVISION OF LABOR › Article 1 - OCCUPATIONAL SAFETY AND HEALTH REGULATIONS › Subarticle 10 - DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS UNDER THE SOUTH CAROLINA OCCUPATIONAL SAFETY AND HEALTH ACT › Section 71-1012 - Exercise Of Any Right Afforded By The Act

Current through Register Vol. 48, No. 6, June 28, 2024
A. In addition to protecting employees who
				file complaints, institute proceedings, or testify in proceedings under or
				relating to the Act, Section
				41-15-510
				also protects employees from discrimination occurring because of the exercise
				"of any right afforded by such statutes, rules, or regulation". Certain rights
				are explicitly provided in the statutes, rules, or regulations; for example,
				there is a right to participate as a party in enforcement proceedings (See R.
				71-410K
				of Subarticle 4). Certain other rights exist by necessary implication. For
				example, employees may request information from the Division of Occupational
				Safety and Health: 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.
B.
(1) 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 an opportunity to
				request inspection of the workplace pursuant to Section
				41-15-260
				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
				41-15-510
				by taking action to discipline an employee for refusing to perform normal job
				activities because of alleged safety or health hazards.
(2) However, occasions might arise when an
				employee is confronted with a choice between not performing assigned tasks and
				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 same 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.