But in Connecticut, there’s another case that employers ought to be thinking about now. It dates back to the first Gulf War in 1990 but the rule advanced in that case may have some application now.
The case is Parsons v. United Technologies Corp. which you can find here. I first talked about this case in 2011 after the tsunami and the radioactivity leaks from the nuclear power plants there.
In Parsons, a helicopter pilot was 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 refusing to go 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 reversed holding:
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.
But there are limits. As the court went on to hold:
[W]e are not holding that an at-will employee can contest his or her discharge based on a subjective belief that an employer’s directive would pose a threat to the employee’s health and safety. It remains the burden of the employee who contests his or her discharge as a violation of the safe workplace public policy to prove that the condition or situation in which the employee was directed to work posed an objectively substantial risk of death, disease or serious physical harm.
The 1997 decision has a good bit of resonance today given its analysis of the risk of “death” and “disease” and raises substantial questions. Can an employee refuse to go to a place like China today because the conditions pose an “objectively substantial risk of death, disease or serious bodily injury” just because of the travel advisory?
(As of this writing, the State Department had issued a “Do Not Travel” advisory to Hubei province, while issuing a ‘Exercise Increased Caution’ when travelling to China. Shortly after publishing, the State Department raised it’s warning to Avoid Non-essential travel.)
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.
If and when the virus spreads, employers will continue to face these types of unique questions. Caution is the watchword of the day.