Fear of flying: How far must employers go to help employees who are so gripped with fear that they refuse to travel for business? - Legal Trends Practical Insights - Brief Article

HR Magazine, Jan, 2002 by Clarence T. Pollard

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 attacks--and the threat that more may occur--some 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 workers--or too many important workers--refused 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 situations--even 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.

In 1973, however, the secretary of the agency issued a regulation establishing the circumstances under which workers could refuse--with impunity--to 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.

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 harm's way while awaiting relief from the Occupational Safety and Health Administration (OSHA).

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 regulation's requirements cannot be forced to perform a task or disciplined for refusing to perform a task. The regulation prohibits a variety of adverse employment actions--including 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 employee's 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 employee's apprehensions are objectively reasonable.

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