"The United States is recommending U.S. citizens defer all non-essential travel to Bahrain."
Have you seen this headline? It’s from 20 years ago.
But strangely, that same headline made a reappearance this week. Don’t remember the last time it happened? Well, you should because a major Connecticut Supreme Court case arose out of it.
And that case may have a significant impact on how Connecticut employers handle employees in the Middle East, and and in Japan.
In Parsons v. United Technologies, a helicopter pilot was allegedly assigned to work to provide training at Bahrain’s main military base, which was going to serve as the main staging area for allied warplanes after Iraq had invaded Kuwait.
Allegedly, "the plaintiff became aware of a travel advisory issued by the United States Department of State (State Department), which was in force throughout the relevant period and provided in part: ‘Due to the Iraqi military invasion of Kuwait and continuing unstable conditions in the region, the Department of State advises all Americans to defer all non-essential travel to … Bahrain….’"
A few days later, the pilot wrote a memo that said that he refused to travel to Bahrain "because of the perceived threat to his health, safety and welfare, evidenced in part by the State Department travel advisory and in part by news reports about the situation in the Persian Gulf region generally. Within two hours of the plaintiff’s refusal, the defendant terminated the plaintiff’s employment and removed him from the building under security escort."
He sued alleging wrongful discharge. The Superior Court struck that count of the complaint stating that "the statutes cited by the plaintiff do not express a public policy which would prohibit an employer from requiring an employee to travel to a foreign country where there may be some type of instability or military threat." The Connecticut Supreme Court overturned that decision.
In doing so, the Court held:
As a result of our careful review of the language, history, and public policy underlying the statutory provisions cited by the plaintiff in support of his claim, we conclude that this body of law expresses a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe workplace to its employees.
The court continued:
We do not find support for the trial court’s conclusion that, even if the relevant statutes do establish a public policy requiring employers to provide a safe workplace, the policy only applies to a workplace that is: (1) located in Connecticut; and (2) controlled, maintained, or owned by the employer. …
Rather than expressing a safe workplace requirement that is limited to the confines of the state and to a work site exclusively controlled by the employer, these statutes simply and firmly prohibit employers who conduct business in Connecticut from exposing their employees to known hazards while they are performing their duties. A Connecticut employer is not relieved of the obligation to provide a safe workplace to its employees because that employer decides to send an employee to a work site outside Connecticut over which the employer has no control. The only relevant inquiry is whether the employer directed the employee to work in a place or condition that poses an objectively substantial risk of death, disease or serious bodily injury to the employee.
The 1997 decision has a good bit of resonance today and raises substantial questions. Can an employee refuse to go to Bahrain today because the conditions pose an "objectively substantial risk of death, disease or serious bodily injury" just because of the travel advisory?
And what about Japan? Can an Connecticut employee refuse an assignment to Japan because the potential for radioactivity poses the same or similar substantial risk?
These are the questions that Connecticut employers with overseas business are having to face now. They’re not easy questions to answer and depend on the particular facts and circumstances of each situation.
But regardless, employers faced with such questions should tread carefully before they terminate an employee based on their refusal to go to such a place and should seek legal guidance.
There’s a reason for the expression: Those who cannot remember the past are condemned to repeat it.
Don’t be one of those employers.