LEGAL: Post 9-11 Workplace, The

Post-Ssptember 11 workplace issues continue to vex businesses and employment law specialists. For example, can a company fire a worker who refuses to travel by plane or to sort mail? A mid-sized engineering consulting firm has faced both situations.

Two of the firm's key employees said no to flying, even after the client offered to arrange a private jet for their travel. The firm had already decreased its employee's travel and had allowed some to telecommute. The impasse was resolved when representatives from another of the firm's offices substituted for the resisting employees. The surrogates successfully conducted a necessary on-site inspection in a complicated arrangement involving cell phones and video cameras.

Employment attorneys see these situations as novel applications of traditional privacy, discrimination and bargaining issues.

“I don't think lawyers have a clue about how to advise their clients on some of these things,” attorney Robert Lipman told The Wall Street Journal. “A lot of these problems don't have a legal remedy because nobody contemplated something like this.”

Eventually, a company has the right to carry on its business. It may reassign or even terminate an employee who declines air travel if no other practicable alternative exists. However, this discretion has its limits. Hiding deep within the National Labor Relations Act is a provision that protects even non-union employees who engage in “concerted activity.”

That's why some 15 employees who feared anthrax contamination at a waste management firm's various offices could not be forced to handle mail. When two or more workers agitate for better workplace protections, the federal law prevents an employer from disciplining or firing them.

Similarly, a mail handler who insisted on wearing gloves to deliver mail within the company offices could not be deterred — even when the gloves made other employees nervous. Indeed, several federal agencies have issued guidelines that suggest the precautionary use of gloves by office workers.

Interest in improving security and diminishing potential liability has prompted some chemical manufacturers and hazardous materials generators to ask trucking firms and other transporters to supply background information on drivers and other handlers. Citing privacy concerns, some fleet operators have flatly refused to supply anything more than names and photo identification of their employees.