Occupational safety or health complaints filed orally or in writing with TOSHA, a state agency operating under an OSHA-approved state plan (state OSHA), the National Institute of Occupational Safety and Health (NIOSH), or a state or local government agency that deals with hazards that can confront employees, even where the agency deals with public safety or health, such as a fire department, health department, or police department. The time of the filing of the safety or health complaint in relation to the alleged retaliation and employer knowledge are often the focus of investigations involving this protected activity.
Filing oral or written complaints about occupational safety or health with the employee’s supervisor or other management personnel.
Instituting or causing to be instituted any proceeding under or related to the TOSH Act. Examples of such proceedings include, but are not limited to, workplace inspections, employee contests of abatement dates, employee initiation of proceedings for the promulgation of TOSHA standards, employee application for modification or revocation of a variance, employee judicial challenge to a TOSHA standard, employee petition for judicial review of an order of the Tennessee Occupational Safety and Health Review Commission. Filing an occupational safety or health grievance under a collective bargaining agreement would also fall into this category. Communicating with the media about an unsafe or unhealthful workplace condition is also in this category.
Providing testimony or being about to provide testimony relating to occupational safety or health in the course of a judicial, quasi-judicial, or administrative proceeding, including, but not limited to, depositions during inspections and investigations.
Exercising any right afforded by the TOSH Act. The following is not an exhaustive list. This broad category includes communicating orally or in writing with the employee’s supervisor or other management personnel about occupational safety or health matters, including asking questions; expressing concerns; reporting a work-related injury or illness; requesting a safety data sheet (SDS); and requesting access to records, copies of the TOSH Act, TOSHA regulations, applicable TOSHA standards, or plans for compliance (such as the hazard communication program or the bloodborne pathogens exposure control plan), as allowed by the standards and regulations. This right is derived both from the employer’s obligation to comply with TOSHA standards and to keep the workplace free from recognized hazards causing or likely to cause death or serious physical harm § T.C.A 50-3-105.
Similarly, an employee has a right to communicate orally or in writing about occupational safety or health matters with union officials or coworkers. This right is derived from the employer and employee obligations identified in § T.C.A 50-3-105 and § T.C.A 50-3-106.
This category (exercising any right afforded by the Act), also includes refusing to perform a task that the employee reasonably believes presents a real danger of death or serious injury. An employee has the right to refuse to perform an assigned task if he or she:
- Has a reasonable apprehension of death or serious injury, and
- Refuses in good faith, and
- Has no reasonable alternative, and
- Has insufficient time to eliminate the condition through regular statutory enforcement channels, i.e., contacting TOSHA, and
- Where possible, sought from his or her employer, and was unable to obtain, a correction of the dangerous condition.
An employee also has the right to comply with, and to obtain the benefits of, TOSHA standards and rules, regulations, Thus, for example, an employee has the right to wear personal protective equipment (PPE) required by an OSHA standard, to refuse to purchase PPE (except as provided by the standards), and to engage in a work practice required by a standard. However, this right does not include a right to refuse to work. To be protected activity a refusal to work must meet the criteria as explained above.
An employee has the right to participate in a TOSHA inspection. He or she has the right to communicate with a TOSHA compliance officer, orally or in writing. Subject to § T.C.A. 50-3-106(6), an authorized representative of employees has a right to accompany the TOSHA compliance officer during the walkaround inspection. He or she must not suffer retaliation because of the exercise of this right.
Tennessee Department of Labor/TOSHA