It is the duty of every employer in the state of California to provide a safe, hazard free work place for its employees. Employers also must have training and instruction about safe work practices, as well as a system for encouraging employees to report unsafe conditions. The employer must ensure that this system is also designed such that the employee may report unsafe conditions without fear of retaliation from the employer.
If an employee reports a hazardous condition in the work place, it is the duty and responsibility of the employer to rectify the problem in a timely manner. Even if the condition has been reported, the employee may have the right to refuse to continue on in the work if the following requirements are met:
1) The employee has asked the employer to fix the hazard, but the employer has not done so;
2) The employee truly, “in good faith”, believes that the condition is hazardous;
3) A reasonable person would also agree the condition presented a real danger of serious injury or death; and
4) the employee remains at the work site until the employer orders the employee to leave.
At any time, an employee is permitted to file a report with OSHA if he or she observes a dangerous work environment. After notification, OSHA may take a variety of actions, ranging from calling the employer and requesting the employer correct the deficiency to inspections. If OSHA chooses to perform inspections, the inspector will arrive unannounced, and will observe hazards and conduct interviews about the conditions.
There are existing laws that prevent retaliation against an employee who refuses to perform hazardous work. The law also prohibits any discrimination against an employee for filing a complaint, participated in a proceeding brought by OSHA, or exercised rights under OSHA. However, OSHA does not create a private action for the employee. Despite that, an employer should treat an employee who has made a complaint to OSHA with care, as it would in the case where an employee has a pending workers’ compensation claim. Take care to not take adverse action or retaliate against an employee for exercising rights granted to them under law.
Hazardous conditions, OSHA, and workers’ compensation laws can all interact in complex ways. I have experience in unraveling the issues. Call me today at (714) 516-8188 and let me help you make a plan to deal with pending or potential future litigation.