Editor's Note: This is the second installment in TheStreet.com's Home Front series, a collection of twice-weekly features that examines how American business, society and investing have changed in the post-Sept. 11 landscape.
Sept. 11's extraordinary terrorist attacks are testing U.S. labor laws in unprecedented ways.
An increasing number of workers are afraid of doing the simple tasks required to get jobs done. In a world threatened by terrorist acts, riding subways, opening mail or reporting to work in landmark buildings can be dangerous. Some workers are refusing to do these things. Others are asking their employers to provide alternatives, such as telecommuting. Employees with legitimate concerns for their safety are making new demands on their employers.
Some of the demands, however, are affecting companies' bottom lines. Firms concentrating on making their workers feel safe may forgo efforts to increase productivity and profits. At some point, efforts to make scared workers feel secure become detrimental to a company's survival.
Such a situation pits employee against employer. What does a firm do, for instance, if one of its international sales representatives refuses to travel by plane? To answer such questions, employers are turning to legal counsel.
Though the American Bar Association hasn't kept track of whether business at law firms has increased since Sept. 11, leading labor attorneys report that a growing number of employees have expressed concern about their safety to employers, forcing companies to grapple with new legal twists to old human resource issues.
Answers to some of the questions can be found in existing employment and civil rights laws, according to leading labor attorneys. It's unlikely the government will write additional laws or regulations to address these unprecedented requests. Instead, "existing laws will be tested," says Jeff White, a partner with Orrick Herrington & Sutcliffe in San Francisco.
Agencies and laws protecting the safety of employees include the Occupational Safety and Health Administration, or OSHA, the Equal Employment Opportunity Commission, the Family and Medical Leave Act and the Americans with Disability Act. Under OSHA, for instance, employees may request that their employers improve security or physical working conditions. But a good number of labor attorneys believe that to avoid OSHA reprisal fees, many companies will improve safety in the workplace before an employee issues a complaint.
For example, now that anthrax has been found in various parts of the country, many businesses and government agencies have begun taking extra precautions in their mailrooms. Should a mailroom worker contract anthrax in an office that has not taken reasonable precautions, a company may have a losing lawsuit on its hands.
"If an employee refuses to do work because they feel it is unsafe,
they could file a wrongful discharge claim," White says.
The FMLA and ADA give employees diagnosed by a doctor as suffering from a physical or mental health difficulty the right to request time off without fear of retaliation or termination. The Equal Employment Opportunity Act also protects employees against discrimination for having such difficulties. In addition, anti-discriminatory and personal safety clauses of several federal agencies and laws give employees the right to express these concerns without fear of retaliation or being fired, according to labor attorneys.
But existing laws fail to directly address a number of conflicts created by Sept. 11's terrorist attacks. Should an employer, for instance, let employees who have no remaining vacation or personal time attend funerals of Sept. 11's victims when they have work due?
In such situations where the law doesn't apply, common sense prevails, attorneys say. And typically in such ambiguous situations, the needs of an employer triumph over those of an employee, simply because if a company fails to make enough money to survive, the employee issuing the complaint won't have a job.
In essence, employees can legally ask for special considerations due to the terrorist attacks only if they document a medical or mental health condition. Their only other legal recourse is to sue their employers. But such lawsuits are difficult and often prolonged, lawyers say.
But now is not the time for employers to be worrying about legal questions or potential litigation, maintains Tom Casey, a partner with PricewaterhouseCoopers' labor relations subsidiary, Unifi Network.
"The best question
for employers to ask is not how to take a literal interpretation of compliance, regulatory and binding-arbitration issues, but how to get their people through this," Casey asserts.
Such concern will pay off in the long run, Casey adds. Firms that worry about the value of their human capital attract top talent.
"Underline the word flexible," advises Dr. Robert Butterworth, a Los Angeles psychologist who is advising Fortune 100 firms on how to act civilly during these emotionally confusing times.
The bottom line consensus: Exercising a little goodwill and a lot of common sense can go a long way.