><
>6. That Ms. Scott reasonably believed that she had been assigned to work in an unsafe or unhealthful manner with a hazardous substance.<
><
>7. That Ms. Scott reasonably believed that the conditions in respondent?s work place presented an imminent danger of death or serious physical harm to her within the meaning of Minn. Stat. ? 182.654, subd. 11.<
><
>8. That respondent?s action in placing Ms. Scott on an involuntary unpaid leave of absence constitutes discrimination against Ms. Scott for the exercise of her rights afforded by Minn. Stat. ? 182.654, subd. 11.<
><
>9. That Minn. Stat. ? 182.669, subd. 1 provides in part as follows:<
><
>In all cases where the administrative law judge finds that an employee has been discharged or otherwise discriminated against by any person because the employee has exercised any right authorized under sections 182.652 to 182.674, the administrative law judge may order payment to the employee of back pay and compensatory damages. The administrative law judge may also order rehiring of the employee; reinstatement of the employee?s former position, fringe benefits, and seniority rights; and other appropriate relief. In addition, the administrative law judge may order payment to the commissioner or to the employee of costs, disbursements, witness fees, and attorney fees.<
><
>10. That complainant Deborah Scott is entitled to back pay, sick leave, vacation leave, health insurance benefits and pension benefits in the total amount of $3,150.40.<
><
>11. That Ms. Scott is entitled to compensatory damages for mental anguish and suffering in the amount of $2,000.00.<
><
>12. Minn. Stat. ? 182.669 subd. 1 also provides in part as follows:<
><
>Interest shall accrue on, and be added to, the unpaid balance of Administrative Law Judge?s order from the date the order is signed by the Administrative Law Judge until it is paid, at the annual rate provided in Section 549.09, subdivision 1, paragraph (c).<
><
>13. That any Finding of Fact which is more properly classified as a Conclusion of law is hereby adopted as such.<
><
>14. The reasons for the above Conclusions of Law are set out in the Memorandum which follows and which is incorporated in these Conclusions of Law by reference.<
><
> Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:<
><
>ORDER<
>IT IS HEREBY ORDERED THAT:<
><
>1. Respondent, Miller-Dwan Medical Center, Inc. shall cease and desist from discriminating against any employee due to the exercise of the rights under chapter 182 of Minnesota Statutes.<
><
>2. Miller-Dwan Medical Center, Inc. shall pay to Deborah Scott total compensatory damages in the amount of $5,150.40.<
><
>3. Miller-Dwan shall pay interest to Deborah Scott on the $3,150.40 portion of the award under Minn. Stat. ? 547.09, subd. 1(c) from November 8, 1996.<
><
>4. Miller-Dwan Medical Center shall remove from its files any reference to Ms. Scott?s unpaid leave of absence and shall take no action that would hinder Ms. Scott from obtaining future employment.<
><
>5. Miller-Dwan Medical Center, Inc. shall post the following notice, printed in large type on 8-1/2 inch x 11 inch paper, for a period of 30 days at each of its Kidney Dialysis Units:<
><
>NOTICE TO ALL EMPLOYEES<
>1. An employer cannot discriminate against any worker who attempted to exercise his or her rights under Minnesota OSHA Health and Safety Law.<
><
>2. On November 8, 1996 Deborah Scott was placed on an involuntary unpaid leave of absence because she declined to work with Renalin while pregnant even though she reasonably believed that she had been assigned to work in an unhealthful manner with a hazardous substance.<
><
>3. Miller-Dwan Medical Center, Inc. has been ordered to pay Deborah Scott $5,150.40 for lost wages and other damages.<
><
>4. Miller-Dwan Medical Center, Inc. has also been ordered not to discriminate against any employee attempting to exercise his or her rights under Minnesota OSHA law.<
><
>6. The commissioner may submit a Petition for Attorney?s Fees and Costs within 20 days of the date of this Order. The Respondent may file a reply within 15 days of receipt of the petition. The resulting Order will be the final decision in this matter for purposes of judicial review.<
><
> <
><
>Dated this<
> 26th<
> day of<
> July, <
> 1999.<
> <
><
> <
><
> <
><
>S/ George A. Beck<
> <
>GEORGE A. BECK<
> <
>Administrative Law Judge <
> <
><
>Reported: Taped<
><
> <
><
>MEMORANDUM<
><
>The Commissioner of the Department of Labor and Industry is asserting in this proceeding that Miller-Dwan Medical Center violated a statute that prohibits employers from discriminating against employees for exercising their rights under Minnesota OSHA law.[76] Under Minnesota OSHA law employees have the right to refuse work under the limited circumstances set out in statute.[77] Generally, an employee has the right to refuse work which the employee in good faith reasonably believes presents an imminent danger of death or serious physical harm. The statute specifically includes within a reasonable belief of imminent danger or serious physical harm, a reasonable belief that the employee has been assigned to work in an unsafe or unhealthful manner with a hazardous substance. Additionally, an employee must request that the employer correct the hazardous condition.<
><
>In order to prevail on this case the complainant must prove that when Ms. Scott refused to perform the Saturday ?end to end? disinfect of dialysis machines, the mixing and dumping of Renalin, and the reprocessing of dializers, that she reasonably believed that exposure to Renalin while performing those tasks presented an imminent danger of serious physical harm to her. In addition the commissioner must demonstrate she was acting in good faith and that she had requested the employer to correct the hazardous condition but the condition remained uncorrected.[78] The commissioner must also demonstrate that Miller-Dwan discharged or took some other negative employment action against Ms. Scott because of her refusal to perform the duties.<
><
>Request to Correct the Hazard<
><
>The record demonstrates Ms. Scott asked the respondent to correct the hazardous condition but it was not corrected. She requested both orally and in writing that Miller-Dwan allow her to avoid exposure to Renalin while she was pregnant by allowing her to not perform the Saturday ?end to end? disinfect of dialysis machines, the mixing and dumping of Renalin and the processing of dializers and by allowing her to perform alternate job tasks. She explained in detail to the respondent why she believed her exposure to Renalin while pregnant constituted a hazardous condition.<
><
>The purpose of the statutory requirement that an employee request the employer to correct the hazardous condition has been explained as follows:<
><
>The requirement?that a complainant communicate the safety defect to an employer ?serves to permit timely correction of the problem, thus promoting safety, to permit the employer to allay workers fears if the hazard is non-existent, and to reduce bad faith work refusals.?[79]<
><
>That purpose was met in this case since Ms. Scott presented her concerns to the employer which allowed the employer to investigate the matter and attempt to allay Ms. Scott?s fears. In its post-hearing
ief the respondent did not argue that Ms. Scott did not communicate her concern to it.<
><
>Good Faith<
><
>The complainant argues that record demonstrates that Ms. Scott was acting in good faith when she refused to perform the duties enumerated above. The complainant cites the definition of ?good faith? in Black?s Law Dictionary, namely, ?an honest belief, the absence of malice and the absence of design to defraud or seek an unconscionable advantage.?[8 A recent ALJ decision concluded that the employee acted in good faith because he had spent several hours talking to his employer about the condition he believed to be hazardous, asked for explanations, and requested an inspection. The ALJ noted that the employee was acting in good faith because instead of just walking off the job he asked to be assigned to a different task.[81]<
><
>Similarly in this case Ms. Scott did not simply walk off the job but identified the tasks she believed were hazardous and requested that she be allowed to perform other tasks during her pregnancy. She attempted to research Renalin and sought medical advice.<
><
>The respondent argues that the record does not support a finding of good faith based upon several factual matters in the record. The most significant of these factors are that Ms. Scott did not complain to Pam Elde
or April Johnson about the physical problems that she experienced while working with Renalin. However, she did complain to others and the issue was discussed at staff meetings. The employer also asserts that Ms. Scott missed most dialysis staff meetings and dialysis in-services and perhaps did not obtain information distributed at those meetings. Her performance reviews indicate she did obtain information, however. This circumstantial evidence cited by the employer is not sufficient to overcome the complainant?s argument. The facts cited by the employer do not constitute malice or a design to defraud or seek an unconscionable advantage. They do not establish that her actions in October of 1996 were in bad faith. The record clearly supports the conclusion that Ms. Scott was acting in good faith about her concerns based upon her clear communication with her employer and her efforts to obtain information about the hazard.<
><
><
><
> <
><
>Hazardous Substance<
><
>In its post-hearing submission the respondent argues that the commissioner has failed to prove that Ms. Scott was assigned to work in an unsafe or unhealthful manner with a hazardous substance. The complainant points out that two of the active ingredients of Renalin are listed as hazardous substances under OSHA rules.[82] Miller-Dwan points out that the rule also exempts any substance for which there is no valid and substantial evidence that a significant risk to human health may occur from exposure.[83] The employer contends that the record demonstrates that the complainant was not exposed to Renalin in amounts above the OSHA permissible exposure limit. Of course, the record indicates that the limits were sometimes exceeded and that several employees experienced noxious physical reactions to working with Renalin.<
><
>However, the employers assertion that Renalin has not been shown to be hazardous is disposed of by the language of the statute itself as well as case law interpreting similar provisions. The statute does not only allow an employee the right to refuse work which presents an imminent danger of death or serious physical harm. Rather, it specifically states that an employees may refuse to work under conditions which the employee ?reasonably believes? present an imminent danger of death or serious physical harm. The complainant is therefore not required to prove that Ms. Scott was in fact in imminent danger of serious physical harm. While the nature of Renalin and its components are certainly relevant to this proceeding, whether they are in fact hazardous is not determinative.<
><
>In a similar federal case[84] a truck driver refused to continue with a trip when his truck was experiencing a loss of power on the freeway because he believed that an unsafe condition existed. The Court rejected the argument that there had to be objective evidence of an unsafe condition in order for the employee to receive the protection of the statute. The statute granted the employee protection from termination when he refused to drive ?because of the employees reasonable apprehension of serious injury to himself or the public due to the unsafe condition.?[85] The Court determined that congressional intent was that the objective reasonableness of the employee?s perception that an unsafe condition existed be evaluated in light of the situation that confronted the employee at the time. The Court concluded that the employees had sustained his burden of proof by demonstrating that his belief that an unsafe condition existed was objectively reasonable, that he had adequately communicated the complaint to his employer, and that the employer had discharged him because of his refusal.[86] <
><
>A similar rule has been applied in the unemployment context in Minnesota.[87] The Minnesota Supreme Court held that where an employee is discharged for refusing to work, the question is whether he had reasonable cause to fear for his own safety, not whether the employee?s work area was in fact safe. Accordingly, the main issue in this case is whether or not the employee had a reasonable belief based upon what she knew at the time, that the work conditions presented an imminent danger of serious physical harm.<
><
>Reasonable Belief<
><
>The Complainant asserts that Ms. Scott reasonably believed that she was in imminent danger of serious physical harm. She points out that a dictionary definition of ?reasonably believe? would be ?to accept as true with reason or sound thinking.? Cases interpreting a federal regulation similar to the Minnesota statute have held that the employee?s apprehension of serious injury is measured by the standard of a reasonable person under the circumstances.[88] One court found as a conclusion of law that an employee discriminated against under the federal regulation ?had no reasonable alternative other than to refuse the job assignment.?[89]<
><
>The Complainant points out that the information available to Ms. Scott at the time she made the decision not to perform certain of her job duties, included the written recommendation from the manufacturer of the chemical in question that pregnant women should avoid exposure to it. Furthermore, Dr. Guttormsson, her obstetrician, and his nurse practitioner both advised her not to work with the chemical. In the past Ms. Scott had suffered acute symptoms while working with Renalin and she was aware that on occasion the air quality test results for hydrogen peroxide had exceeded OSHA exposure limits. In her investigation she learned that Minntech Corporation did not allow its own pregnant employees to work with Renalin. She was told that some of her co-workers had problems with pregnancies after working with Renalin. She also learned that there were no studies indicating that Renalin was safe for pregnant employees. At the time that Ms. Scott first saw the letter from Minntech she was six months pregnant and had been working with Renalin for those six months.<
><
>The Respondent argues to the contrary that a reasonable person in Ms. Scott?s position would have concluded that there was no reasonable basis to believe that exposure to Renalin would present an imminent danger of serious physical harm. Miller-Dwan points out that when staff concerns were expressed about odor and irritation in the reuse room they were addressed through increased ventilation. It also points out that monthly testing usually showed a level of hydrogen peroxide and acetic acid below OSHA thresholds. It points out that the April 9, 1993 letter from Minntech stated that there were no studies indicating a human reproductive hazard from the active ingredients in Renalin. The October 16, 1996 letter from Minntech stated that there were no reported incidents of human reproductive problems or defects resulting from exposure to Renalin. Miller-Dwan believes that a reasonable person would have relied upon Dr. Downs? statement, that Miller-Dwan produced for Ms. Scott, that hydrogen peroxide was not harmful. It also asserts that the fact that almost all other dialysis units made no special precautions for pregnant employees using Renalin would cause a reasonable person not to be concerned.<
><
>The evidence in this record preponderates in favor of a conclusion that Deborah Scott had a good faith reasonable belief that she was in imminent danger of physical harm from performing the mixing and dumping of Renalin, the reprocessing of dializers, and the Saturday end-to-end disinfect of dialysis machines. She believed she might miscarry or deliver prematurely.[9 She was concerned not only about herself, but of course about her unborn child. The existence of the 1993 letter from Minntech is likely sufficient by itself to support Ms. Scott?s reasonable belief. Although it acknowledged no relevant studies existed, it also stated that the absence of studies was not an absolute assurance of the safety of Renalin. The letter then concluded by stating, in bold face and in capital letters, that ?MINNTECH RECOMMENDS THAT AS A PRUDENT PRECAUTION, EXPOSURE TO RENALIN, AND ALL OTHER SUCH CHEMICALS, SHOULD BE AVOIDED DURING PREGNANCY.?[91] This is an unequivocal warning which no pregnant woman, concerned for her unborn child, could afford to ignore. <
><
>Beyond this letter, however, Ms. Scott had other information to support her belief. In order to return to work Ms. Scott would have had to ignore the recommendation of her obstetrician who testified that in regard to pregnant women, the ?reasonable belief? is that a chemical is unsafe unless it is shown to be safe. There is no evidence in the record that Renalin caused problems for pregnant women or birth defects. It would not, however, be reasonable for Ms. Scott to simply ignore the reports of problems from her pregnant co-workers. She had, herself, experienced a burning in her nose, eyes watering, and difficulty
eathing while working with Renalin. Of particular concern must have been the information that Ms. Scott received from an engineer at Minntech who advised her that Minntech did not allow its own pregnant employees to work with Renalin. A reasonable person would conclude from this that there must be a possibility of an adverse effect to a pregnency or to the fetus. The Complainant?s medical expert, Dr. Lohmann, agreed that it was reasonable to believe serious physical harm was imminent.[92]<
><
>Miller-Dwan did make a good faith effort to collect information about Renalin and whether or not it constituted a reproductive hazard. However, the information that it gathered was not adequate to overcome Ms. Scott?s
reasonable belief. The fact that there had been past problems with ventilation of the reuse room would be little comfort since complaints were still being made during 1996. The assurances of Minntech in a 1996 letter that there were no reported incidents of human reproductive problems would not be particularly persuasive in light of its own policy of not allowing pregnant employees to work with Renalin. The findings of Dr. Cohan in 1993 merely indicated again that no studies were available. Dr. Downs?
ief November 1, 1996 memo gave his opinion of the individual components of Renalin but did not address how they would act together synergistically.<
