(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension
of serious injury is reasonable only if a reasonable individual in the
circumstances then confronting the employee would conclude that the
unsafe condition establishes a real danger of accident, injury, or serious
impairment to health. To qualify for protection, the employee must have
sought from the employer, and been unable to obtain, correction of the
unsafe condition.
Employees are protected from retaliatory action by their employer for refusal to operate a
commercial vehicle under § 31105(a)(1)(B)(i) (the “actual violation” prong) if operating the
vehicle would violate relevant regulations. Under § 31105(a)(1)(B)(ii) (the “reasonable
apprehension” prong) an employee need only have a reasonable apprehension of serious injury
to himself or the public, based on the objective standard set out in § 31105(a)(2), for a refusal to