Chapter 4167-2 Refusal to Work
This rule is promulgated pursuant to division (A) of section 4167.06 of the Revised Code.
(A) A public employee acting in good faith has the right to refuse work under conditions that the employee reasonably believes present an imminent danger of death or serious harm to the employee if all of the following conditions are met:
(1) The working conditions are not as normally exists or reasonably might be expected to occur in the normal and regular duties of the employee.
(2) There is insufficient time to eliminate the danger through the inspection and enforcement procedures provided by section 4167.10 of the Revised Code.
(3) The working conditions are such that a reasonable person would conclude an imminent danger exists.
(4) The employee has requested that their immediate supervisor or other supervisory representative of the employer correct the hazardous condition, but the supervisor or representative declines to correct the hazardous condition.
(B) Notice to superintendent required.
An employee who exercises his right to refuse work under this rule must notify the superintendent in a written statement, as soon as practical, of the working conditions under which the employee has refused to work. An employee may provide initial notice to the superintendent via telephone if the employer declines to correct the hazardous working conditions.
(C) Inspection by superintendent.
Upon receipt of the notice, the superintendent shall immediately contact the public employer and inform the employer of the notification. The superintendent shall also inform the employer that a compliance officer will immediately inspect the premises of the employer, pursuant to rule 4167-8-01 of the Administrative Code. If, upon inspection, the superintendent finds any condition or practice which presents an imminent danger to the safety and health of a public employee, the superintendent shall issue a "notice of imminent danger" pursuant to rule 4167-8-02 of the Administrative Code.
(D) Public employee rights.
A public employee who has refused in good faith to perform assigned tasks and who has not been reassigned to other tasks by the public employer shall, in addition to retaining a right to continued employment, receive full compensation for the tasks that would have been performed. If the public employer reassigns the public employee, the public employer shall pay the public employee's full compensation as if the public employee were not reassigned.
(E) Public employer rights.
A public employee who refuses to perform assigned tasks under paragraph (A) of this rule and fails to meet all of the conditions set forth in that paragraph for the refusal is subject to any disciplinary action provided by law or agreement between the public employer and public employee for a refusal to work, including, but not limited to, suspension, nonpayment of wages for the duration of the refusal to work, and discharge.
Replaces: 4167-2-01, 4167-2-02, 4167-2-03, 4167-2-03, 4167-2-04
Five Year Review (FYR) Dates:
Promulgated Under: 119.03
Statutory Authority: 4167.07, 4167.02, 4121.121, 4121.12
Rule Amplifies: 4167.02
Prior Effective Dates: 07/01/1994, 11/15/1996, 08/01/2001, 08/15/2001, 02/15/2009, 01/01/2014
(A) Any public employee or public employee representative who believes that a violation of an Ohio employment risk reduction standard exists that threatens physical harm may request an inspection by giving written, dated notice to the superintendent of the violation.
(1) The notice shall set forth with reasonable particularity the grounds for the complaint, and shall be signed by the public employee or public employee representative. The names of the public employee making the complaint or any employees referred to in the complaint shall not appear in the notice sent to the public employer and shall be kept confidential.
(2) The notice shall include:
(a) A description of the hazard to include, if applicable or possible, the date(s) and time(s), the location, and/or the pieces of equipment involved.
(b) The names of the public employee(s) or duties of the public employee(s) who are affected.
(B) If, upon receipt of a notification, the superintendent determines that there are no reasonable grounds to believe that a violation or danger exists, the superintendent shall inform the public employee or public employee representative in writing of his determination.
(1) The complaining party may request reconsideration of such determination by submitting a written statement of position to the superintendent. The superintendent shall submit a copy of such statement, with confidentiality of the complainant maintained, to the employer.
(2) The employer may submit an opposing written statement of position with the superintendent.
(3) The superintendent, at his or her discretion, may hold informal conferences in which the complaining party and the employer may orally present their views.
(4) After considering all written and oral views presented, the superintendent shall affirm, modify, or reverse the original determination and furnish the complaining party and the employer a written notification of the decisions and the reasons thereof. Such determination shall be without prejudice to the filing of a new complaint correcting any deficiencies in the original complaint that may be identified by the superintendent.
(C) If, upon receipt of a notification, the superintendent determines that there are reasonable grounds to believe that a violation or danger exists, the superintendent shall, within five business days after receipt of the notification, notify the public employer, by certified mail, return receipt requested, of the alleged violation or danger.
(1) The notice provided to the public employer or his agent shall:
(a) Inform the public employer of the alleged violation or danger; and
(b) Notify the employer that that the superintendent will investigate and inspect the public employer's workplace as provided in rule 4167-8-01 of the Administrative Code.
(2) The public employer must respond to the superintendent concerning the alleged violation or danger within thirty days after receipt of the notice.
(a) If the public employer does not correct the violation or danger within the thirty-day period or if the public employer fails to respond within that time period, the superintendent shall investigate and inspect the public employer's workplace as provided in rule 4167-8-01 of the Administrative Code.
(b) The superintendent shall not conduct any inspection prior to the end of the thirty-day period unless requested or permitted by the public employer.
(i) If the employer requests such inspection, the superintendent shall not issue a citation with respect to any findings during the inspection prior to the close of the thirty-day period during which the employer is permitted to respond to the notice of alleged violation or danger.
(ii) If the employer successfully abates all violations or dangers identified during the inspection prior to the close of the thirty-day period during which the employer is permitted to respond to the notice of alleged violation or danger, the superintendent shall not issue a citation for the violations or dangers alleged in the complaint.
(D) The authority of the superintendent to investigate and inspect premises pursuant to this rule is not limited to the alleged violation or danger contained in the notification.
(1) The superintendent may investigate and inspect any other area of the premises where they have reason to believe that a violation or danger exists.
(2) If the superintendent detects any obvious or apparent violation at any temporary place of employment while en route to the premises to be inspected or investigated, and that violation presents a substantial probability that the condition or practice could result in death or serious physical harm, the superintendent may use any of the enforcement mechanisms provided in this section to correct or remove the condition or practice.
Five Year Review (FYR) Dates: 9/21/2018 and 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 4167.07, 4167.02, 4121.12, 4121.121
Rule Amplifies: 4167.02, 4167.10
Prior Effective Dates: 07/01/1994, 03/20/1995, 11/15/1996, 01/17/1999, 08/15/2001, 02/15/2009, 01/01/2014
R.C. 119.032 review dates: 10/09/2013
Promulgated Under: 119.03
Statutory Authority: 4121.12, 4121.121, 4167.02
Rule Amplifies: 4167.06
Prior Effective Dates: 7/1/94, 11/15/96, 8/1/01