S.C. Code Regs. § § 71-1012
Current through Register Vol. 48, No. 10, October 25, 2024
Section 71-1012 - Exercise Of Any Right Afforded By The ActA. 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.S.C. Code Regs. § 71-1012