(a) It shall be the duty of each employee to comply with all occupational safety and health rules and regulations issued pursuant to this chapter and any orders issued thereunder which are applicable to his own action and conduct.
(b) Employees or their representatives may bring to the attention of their employer any hazardous conditions that exist or bring the matter to the attention of the Commissioner or his authorized representative, without first bringing the matter to the attention of their employer. Upon receipt of any complaint of hazardous conditions, the Commissioner or his authorized representative shall cause an inspection to be made as soon as practicable. Within two working days after making the oral complaint the employee or the employee representative shall file a written complaint with the Commissioner on a form prescribed by the Commissioner, if at that time, the Commissioner or his authorized representative has not caused the hazardous condition to be corrected. A copy of such written complaint shall be made available to the employer by the Commissioner at the time of such inspection. The name or names of individuals bringing such matters to the attention of the Commissioner shall be held in confidence upon request of such individuals.
(c) [Repealed.]
(d) A representative of the employees selected by the employees shall be given an opportunity to accompany the Commissioner or his authorized representative during the physical inspection of the work place for the purpose of aiding such inspection. Where there is no authorized employee representative, the Commissioner or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety at the work place. No person shall discharge or in any manner discriminate against an employee representative for his participation in any safety and health inspection.
(e) The employer and the complaining employee, employees or employee representative shall be notified in writing by the Commissioner or his authorized representative of any decision concerning a complaint, of the reasons for such decision and of the rights of the parties to redress pursuant to § 40.1-49.4 of the Code.
1972, c. 602; 1973, c. 425; 1976, c. 607.
Notes of Decisions
Nelson v. United States Postal Serv., 189 F. Supp. 2d 450 (W.D. Va. 2002).
· cites it 6× “Nelson not only has available to him the federal standards set forth under the Occupational Safety and Health Act (“OSHA”), but he may also file a complaint with the Virginia State Health Commissioner under Virginia Code § 40.1-51.2. Virginia Code § 40.1-51.”
McFarland v. Virginia Ret. Servs. of Chesterfield, L.L.C., 477 F. Supp. 2d 727 (E.D. Va. 2007).
· cites it 6× “” Va. Code Ann. § 40.1-51.2 :1. But the Defendants argue that McFarland’s cooperation with the licensing inspector is not a proper basis for seeking the protection of Section 40.”
Abateco Servs., Inc. v. Theron J. Bell, etc., 477 S.E.2d 795 (Va. Ct. App. 1996).
· cites it 2× “On November 22, 1994, a complaint from an employee working at the Staunton Correctional Center prompted the commissioner to send the inspector back to the site under authority of Code § 40.1-51.2, which requires the commissioner to inspect employee complaints of hazardous…”
Davenport v. Summit Contractors, Inc., 612 S.E.2d 239 (Va. Ct. App. 2005).
· cites it 2× “Code § 40.1-51.2(b) (emphasis added). The emphasis on the employer-employee relationship parallels similar provisions of the federal regulations.”
Ellston v. LeHew (W.D. Va. 2025).
· cites it 2× “) The motion provided four grounds for dismissal of Ellston’s claims under Federal Rule of Civil Procedure 12(b)(6): first, claims under the ADA cannot be brought against individuals; second, Ellston had not alleged protected activity or the exhaustion of administrative remedies…”
Marslender v. Virginia Elec. & Power Co., 37 Va. Cir. 199 (Norfolk Cir. Ct. 1995).
· cites it 3× “§ 654 (b); see also Va. Code § 40.1-51.2(a) (Michie 1950). Courts have been more reluctant to conclude that a violation of OSHA regulations is negligence per se.”
James Cook v. Roanoke Elec. Steel Corp. (4th Cir. 2024).
“Va. Code Ann. § 40.1-51.2 :1. Thus, to state a claim under this section, an employee must assert that (1) he has been terminated or retaliated against for (2) partaking in a protected activity, such as filing a safety or health complaint, and it was (3) related to the safety,…”
Bell v. Gen. Masonry, Inc., 46 Va. Cir. 83 (Fairfax Cir. Ct. 1998).
· cites it 2× “Similarly, §40.1-51.2 requires that the names of individuals who bring hazardous conditions to the attention of the Commissioner of Labor and Industry be held in confidence upon the request of such individuals.”
Scarborough v. Aegis Commc'ns (4th Cir. 2000).
“Scarborough attempted to raise a state law claim that he was fired in retaliation for filing a complaint with the Virginia Department of Labor and Industry, in violation of Va. Code Ann. § 40.1-51.2 :1 (Michie 1999).”
— Va. Code Ann. § 40.1-51.2(a) — 1 case
Marslender v. Virginia Elec. & Power Co., 37 Va. Cir. 199 (Norfolk Cir. Ct. 1995).
“§ 654 (b); see also Va. Code § 40.1-51.2(a) (Michie 1950). Courts have been more reluctant to conclude that a violation of OSHA regulations is negligence per se.”
— Va. Code Ann. § 40.1-51.2(b) — 1 case
Davenport v. Summit Contractors, Inc., 612 S.E.2d 239 (Va. Ct. App. 2005).
“Code § 40.1-51.2(b) (emphasis added). The emphasis on the employer-employee relationship parallels similar provisions of the federal regulations.”
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