Virginia Administrative Code › Title 16 - LABOR AND EMPLOYMENT › Agency 25 - SAFETY AND HEALTH CODES BOARD › Chapter 60 - ADMINISTRATIVE REGULATION FOR THE VIRGINIA OCCUPATIONAL SAFETY AND HEALTH PROGRAM › Part II - General Provisions › Section 16VAC25-60-110 - Discrimination; discharge or retaliation; remedy for retaliation

Current through Register Vol. 40, No. 24, July 15, 2024
A. In carrying out
				  his duties under § 40.1-51.2:2 of the Code of Virginia, the commissioner
				  shall consider case law, regulations, and formal policies of federal OSHA. An
				  employee's engagement in activities protected by Title 40.1 does not
				  automatically render him immune from discharge or discipline for legitimate
				  reasons. Termination or other disciplinary action may be taken for a
				  combination of reasons, involving both discriminatory and nondiscriminatory
				  motivations. In such a case, a violation of § 40.1-51.2:1 of the Code of
				  Virginia has occurred if the protected activity was a substantial reason for
				  the action, or if the discharge or other adverse action would not have taken
				  place "but for" engagement in protected activity.
Employee activities protected by § 40.1-51.2:1 of the
					 Code of Virginia include, but are not limited to:
1. Making any complaint to his employer or
				  any other person under or related to the safety and health provisions of Title
				  40.1 of the Code of Virginia;
2.
				  Instituting or causing to be instituted any proceeding under or related to the
				  safety and health provisions of Title 40.1 of the Code of Virginia;
3. Testifying or intending to testify in any
				  proceeding under or related to the safety and health provisions of Title 40.1
				  of the Code of Virginia;
4.
				  Cooperating with or providing information to the commissioner during a worksite
				  inspection; or
5. Exercising on his
				  own behalf or on behalf of any other employee any right afforded by the safety
				  and health provisions of Title 40.1 of the Code of Virginia.
Discharge or discipline of an employee who has refused to
					 complete an assigned task because of a reasonable fear of injury or death will
					 be considered retaliatory only if the employee has sought abatement of the
					 hazard from the employer and the statutory procedures for securing abatement
					 would not have provided timely protection. 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. In addition, in such
					 circumstances, the employee, where possible, must also have sought from his
					 employer, and been unable to obtain, an abatement of the dangerous
					 condition.
Disciplinary measures taken by employers solely in response
					 to employee refusal to comply with appropriate safety rules and regulations
					 shall not be regarded as retaliatory action prohibited by § 40.1-51.2:1 of
					 the Code of Virginia.