Legal Trends: Fear of Flying

How far must employers go to help employees who are so gripped with fear that they refuse to travel for business?

The terrorist attacks of Sept. 11 inflicted a profound psychic wound on the people of the United States. Individuals once unconcerned with terrorism now may find themselves afraid of such formerly benign activities as working in high-rise offices or traveling by commercial airliner.

In the wake of these attacksand the threat that more may occursome employees may refuse activities such as business air travel because they perceive these activities to be dangerous.

Yet many businesses depend on traveling employees to service clients and fulfill internal corporate needs in remote locations. Such businesses would be crippled if too many workersor too many important workersrefused to travel for any reason, including an understandable fear of further terrorist activity.

Under the Occupational Safety and Health Act (OSH Act), employers are required to provide a safe working environment for employees. The law applies to all working situationseven those outside of the employers offices or plants. This gives rise to the following question: Does the OSH Act give employees who fear terrorist attacks the right to refuse business travel?

(Note: This article does not deal with unionized workforces, which may be subject to specific union contracts, the National Labor Relations Act or the Railway Labor Act. This article also does not address state laws or the possible use of the Americans with Disabilities Act to protect employees who refuse business travel.)

OSH Act Basics

The OSH Act is a broad piece of legislation that requires employers to provide working conditions that are free from recognized hazards that are causing or are likely to cause death or serious physical harm.

The law also expressly creates mechanisms that employees may use to protect themselves from dangerous employment conditions. In addition, the act bars employers from disciplining or retaliating against employees who file or support a claim.

Despite these broad protections, however, the law itself does not allow employees to protect themselves from even life-threatening hazardous conditions by removing themselves from harms way while awaiting relief from the Occupational Safety and Health Administration (OSHA).

In 1973, however, the secretary of the agency issued a regulation establishing the circumstances under which workers could refusewith impunityto perform work. Even while acknowledging that workers lack the general right to refuse work perceived as dangerous, the regulation allows employees to do so in good faith if a reasonable person would conclude that there is a real danger of death or serious injury and there is insufficient time to eliminate the danger through regular statutory channels.

In addition to these requirements of good faith, reasonableness and urgency, the regulation allowed employees to refuse work only when the employee, where possible, sought from his employer and [had] been unable to obtain, a correction of the dangerous condition.

The Supreme Court upheld the regulation in the case of Whirlpool Corp. v. Marshall (445 US 1, 8 OSHC 1001, 1004 (1980)). Lower federal courts continue to require that these four criteria be met as a prerequisite to sanctioning a refusal to work.

Employees who satisfy the regulations requirements cannot be forced to perform a task or disciplined for refusing to perform a task. The regulation prohibits a variety of adverse employment actionsincluding reprimands, suspensions, discharges, reductions in compensation and refusals to hire. Employers that violate the regulation can be forced to undertake a variety of remedial actions, including reinstatement, offering back pay with interest, restoring lost benefits and purging personnel records.

What employers can do is offer employees safe work alternatives. If employees refuse the alternative work, employers can discipline them and refrain from paying them for the time corresponding to the initial refusal.

(Note: Many state and federal courts are still divided on whether or not the OSH Act pre-empts state laws that also forbid adverse action against workers who refuse to work in the face of perceived hazards.)

Analysis

It seems reasonable that employees who refuse to perform a certain function such as business travel because they feel that it is unnecessarily dangerous, could seek protection under the OSHA regulation. While this regulation could provide employees with some protection, in general, it seems likely that it will not allow them to refuse work based on fears of terrorism.

There are two reasons for this.

First, the regulation requires that the circumstances establishing unacceptable danger be reasonable. As a result, many courts focus on the objective facts giving rise to the employees apprehension. That is, they look to the particular equipment, facilities, vehicles and other discrete aspects of the work scenario that present the threat to determine if an employees apprehensions are objectively reasonable.

The more vague or amorphous the perceived hazard is, the less likely it will be deemed objectively reasonable.

By their very nature, terrorist threats seem to lack the objective specificity the regulation requires. Quite simply, surprise is terrorisms engine. Generalized fears of the kind spawned by the prospect of unknown actors attacking unpredictable targets in unimaginable ways simply do not seem to correspond to the kinds of circumstances courts have deemed credible sources of employee apprehensionhowever valid these fears are as expressions of basic human emotion.

Second, when it comes to corporate air travel, economic prudence suggests that companies will try to save money by scheduling flights as far in advance as possible. This would militate against an employees ability to satisfy the third requirement of the regulationthat there be insufficient time to allow OSHA to investigate the situation and order curative measures.

The agency usually directs employers to do or to refrain from doing specific acts directed at specific objects that are, to a great extent, under the employers control. This approach works, to the extent that it does, because the federal government can compel employers to create safe working environments.

But acts of terror, by their very nature, are neither so inert nor so accommodating. They are taken by parties who act without an employers knowledge, and do so beyond its control, and they frequently involve objects whose capacity for carnage does not inhere in the employers failure to replace a brake pad or mop up a spill.

In other words, all things being equal, such dangers cannot be washed away by a sea of OSH Act orders.

Consequently, as the regulation itself suggests, an employer could discipline an employee without fear of violating the act if the employee refused to fly, even if he or she had failed to satisfy the regulations requirements.

Nonetheless, it is conceivable that a threat of terror could be sufficiently specific, imminent, concrete and urgent enough to satisfy the regulation. Here's an example: A last-minute meeting requires air travel the following morning. But, that night, after the ticket had been purchased, credible evidence surfaces suggesting that any airplane traveling in a given region might be hijacked. Suppose the evidence is frightening enough to terrorize prospective passengers and sudden enough to prevent effective involvement from OSHA, but not necessarily specific enough to justify grounding all potentially affected commercial aircraft, or even the craft of a specific carrier.

In this scenario, from a legal perspective, what should the human resource director do? Insist that the employee take the flight? Impose discipline if the refusal persists? Take a more conciliatory approach?

Candidly, the answer is far from clear. Taking the hard line approach is a roll of the dice both jurisprudentially and prudentially. The good faith of many employees who express a fear of business travel in common carriers can be assumed in most casesparticularly among those, such as salespersons, whose compensation is tied to their willingness to travel. But good faith cannot be treated as a foregone conclusion in every circumstance.

Determining if the other elements of the regulation have been satisfied in a given situation requires even more careful analysis. As previously stated, when information giving rise to a fear of flying is based on generalities, it is less likely to be deemed objectively reasonable. As a result, a refusal to fly would not be judged immune from discipline.

On the other hand, it is not possible to guess accurately how judges will respond to a type of employee fear that began on Sept. 11 and that is new in the American experience--the fear of terrorist events that may be unidentifiable and unpredictable, but that seem imminent nonetheless. In their effort to protect workers from dangers that are admittedly not employer-generated, judges may err on the side of finding reasonableness and urgency where only angst exists.

As a practical matter, insisting that employees fly even though they may be terrified, and disciplining them if they refuse to do so, may wreck company morale. On the other hand, clients must be served if the business is to remain successful, and this may require the unpleasant task of ordering employees to do uncomfortable things and disciplining them if they dont.

In short, this may require policies that prompt employees into returning to business as usual.

General Response Guidelines

To help address employees fear of travel, employers may wish to pursue the following general guidelines:

First, as soon as possible, begin formulating and disseminating standards that define what qualifies as objectively reasonable fears of air travel. Include input from owners, management and employeesas well as consultants and experts.

Although it is unlikely that everyone will agree with the final standards, a high degree of consensus may be achieved.

Next, determine the types of positions for which business travel is a key function of the job. Update these job descriptions accordingly. In future job interviews for these positions, emphasize that business travel is a key component of the job.

Third, identify alternative means of travel to frequent destinations. This will provide apprehensive employees with choices that may diminish the likelihood they will simply refuse to travel altogether. Or consider alternatives to any form of travel, such as video conferencing.

Fourth, employees who refuse to traveland who satisfy the requirements of the OSHA regulationmust be offered safe alternative work. Accordingly, employers who anticipate that their workers may refuse to travel should be ready to offer safe alternative work.

Fifth, employers who routinely do business in the same remote locations may want to consider establishing a presence in some of these locations consisting of employees who could transact local business in case no employees from the home office will travel.

Sixth, the company should make counseling available that is capable of specifically addressing issues related to terrorism, including its impact on the willingness to travel. Such services can help fearful employees work through their concerns, which can benefit both the employee and the company.

Specific Responses

In addition to these general, ongoing efforts, there are several things companies should do in the specific situation in which an employee refuses to travel because of terrorism-related fears.

First, responsible company officials should ascertain as precisely as possible the nature of the employees fear. Such information can serve the following important functions:​

• ​Provide critical information about what would allay the employees fears.
• Establish the basis for predicting whether or not the fears would be deemed objectively reasonable in the event that discipline is imposed and ultimately challenged.
• Assist legal counsel to make the optimum strategic determinations possible in the particular circumstances.

As in formulating responses to any fear-based employee refusal to work, legal counsel should be involved in the responseif for no other reason than to address the great deal of uncertainty about what the regulations require. (For example, it still is not clear to what extent the employer must go to provide alternative work.)

Next, make some effort to determine whether the employees fears can be accommodated through some other means of travel and, if so, which ones might do so without undue difficulty for the company, its clients or customers.

Third, as indicated above, employees who meet the regulations criteria must be offered alternative safe work before their pay can be docked. Because employers may not be sure if the regulations requirements ultimately will be satisfied, they should offer alternative work to employees in most cases. Such a determination should, of course, not be made in the absence of extensive discussion with legal counsel.

Conclusion

Terrorism wins only if it succeeds in causing personal and economic paralysis. No doubt many employees will be unable to shake the fear of more terrorism that will cause more casualties, more loss, more destruction. These fears may diminish their willingness to put themselves in what they perceive to be harms way by using common carriers to travel for business.

Such people deserve a compassionate and helpful response from those of us who are comparatively less affected. Corporate establishment of a multifaceted protocol for responding to such fears, short of summary discipline, can provide such compassion, while simultaneously fostering continued American economic vitality.

Clarence T. Pollard is an associate with the San Francisco law firm of Jeffer, Mangels, Butler & Marmaro LLP.