When Workers Refuse to Stay in or Travel to War Zones

When employees work in regions where there are wars or armed conflicts — as there are in some parts of the world now — what should businesses do if a worker refuses to remain in or travel to the areas out of fear for their safety or psychological health?

Businesses that have people in war-torn areas could be defense contractors, humanitarian outfits, airlines, construction companies, banks, linguists, or oil companies, to name a few. Employees may be staff who live in the region and already have roots there, or international staff assigned to work there temporarily. 

An employer’s response to a worker who wants to leave a war-torn area, or refuses to travel there, depends in large part on the worker’s job role, the urgency of that role, the nature of the business, and any extenuating circumstances — such as pregnancy or disability — that may protect workers from repercussions should they refuse war-zone assignments. 

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Balancing Business and HR Concerns  

Employees on business trips or expat assignments in a country where conflict breaks out are frequently evacuated by their employers, said Donald Dowling, an attorney with Littler in New York City.  

“Canceling business trips and expat assignments into places where conflict has broken out happens all the time,” he said. “Evacuating business travelers and expats from zones that have suddenly become dangerous happens all the time, too. There are even specialist evacuation services providers.” 

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On the other hand, he said, local employees originally hired in a country where conflict breaks out have no reasonable expectation of an employer-provided evacuation. 

“This is a balance between business need and HR concerns,” he said, adding that an employer’s decision may depend on the worker’s job role, the legitimacy of the safety concern, and — if it’s an expat working in the country — the availability of a co-worker willing to take the trip. “If the employer is a U.S. military government contractor and if the objecting employee was hired to work overseas supporting the military, the employer will not likely tolerate the refusal. On the other hand, if the business need for the overseas trip is weak or might be deferred, the employer will be more sensitive to the employee’s concerns.” 

Are there industries in which an employee’s refusal to go to a war-torn country might be a stain on the employee’s record? 

“It’s less a matter of the industry and more a matter of job role,” Dowling said. “A security services company that contracts with the U.S. military to provide security services will expect a security guard to take this trip but will not expect its U.S. back-office staff to take this trip. A news organization will expect its war correspondent to take this trip but will not expect a journalist on the fashion or lifestyles beat to take this trip.”

Legal Implications  

Businesses may want to consider an employee’s refusal to remain in or travel to a war-torn region if, for instance, the worker has a disability or a sincerely held religious belief about armed conflict. In addition, the Pregnant Workers Fairness Act or the Pregnancy Discrimination Act could protect a pregnant employee who refuses to travel to a war zone. 

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On the other hand, in certain jurisdictions, it “may be improper for an employer to grant special dispensation to an employee with children, such as not traveling to a country in the midst of an armed conflict, and to require an employee without children to go to that country,” said Giovanni Antonucci Di Cesare, an attorney with Pierson Ferdinand in Philadelphia.

The General Duty Clause of the Occupational Safety and Health Act (OSH Act) requires employers to furnish a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.

“In my way of thinking the organization creates a liability and a significant risk if they put employees in harm’s way — unless that is what they have signed up for, like the military,” said Nina E. Woodard, SHRM-SCP, president of Nina E. Woodard & Associates in Colorado Springs, Colo.

Woodard said that while she was with Standard Chartered and stationed in Indonesia, her company ensured that employees had exit strategies if needed.  

“For example, while I was on assignment in Indonesia during the [1975] Timor War, there was an uprising and I was immediately whisked away and taken to safety. Duty of care is a real concern in circumstances like this … [and] would be reflected in a duty-of-care policy. For businesses that are overseas, they should have considerations for these types of events and the process for removal of the employee and their families.”

Legal claims might also arise if an employee suffers career setbacks because of a refusal to remain in or visit a war-torn area. 

“Employers must be mindful not to retaliate against an employee that refuses to travel to a country that is experiencing armed conflict by taking adverse employment action against that person [such as] discipline, demotion, or termination when the employee has identified legitimate and lawful reasons for declining,” Antonucci Di Cesare said. “In fact, an employee who raises safety concerns under [the OSH Act], the NLRA [National Labor Relations Act], or as a reasonable accommodation request may be protected from adverse action for doing so.”

But Dowling differentiates between possible claims arising from a career setback and those arising from physical harm. 

“A viable legal claim seeking damages for career setbacks because a business traveler or expatriate had asked to leave a danger zone is highly unlikely,” he said. “I’ve never heard of a claim like that. Again, there is a lot to say about how an employer might minimize its liability exposure to a duty of care or negligence or personal injury claim after an international business traveler or expat suffers an actual injury overseas.” 

Alternatives  

Antonucci Di Cesare offers some options should a worker decline to travel to or remain in an area where there is armed conflict:

• Assigning another employee who is comfortable with such travel or work location. 
• Conducting a risk assessment and sharing the results with the employee. Based on the assessment, the employer may also have to reconsider sending any employee at all to the region. 
• Devising a risk mitigation strategy with the employee, which may include a security detail, secured lodging, and providing appropriate personal protective equipment.
• Developing evacuation protocols for the employee’s extraction in the safest and most efficient manner.  

Dana Wilkie is a freelance journalist living in Ormond Beach, Fla.