Familiar Topics in Unfamiliar Times: Legal Issues Faced By Employers in the Wake of the Terrorist Attacks

The events of September 11 have profoundly affected many facets of our society, including employment relationships and interactions in the workplace. Employers must now confront a number of legal issues that were always in the background but that now have suddenly enhanced importance, such as harassment and discrimination based upon religion and ethnicity, stress-related illnesses and conditions related to the attacks, military leave issues, and unplanned downsizing resulting from the economic downturn exacerbated by the attacks.

Harassment and discrimination based upon religion and ethnicity

Since September 11, there have been increased reports of harassment of and discrimination against Muslims and persons who are, or are perceived to be, of Arab descent. As a result, on November 19, the U.S. Equal Employment Opportunity Commission, the Department of Justice, and the Department of Labor issued a “Joint Statement Against Discrimination in the Aftermath of the September 11 Terrorist Attacks,” and the EEOC is paying particular attention these days to claims of discrimination against Muslims and Arabs. Employers therefore should be more vigilant than ever in guarding against harassment and discrimination of all kinds and should be especially sensitive to bias based upon religion and ethnicity. At a minimum, employers should take the following steps to provide a work atmosphere free of unlawful harassment based on religion, national origin, or ethnicity:

• Maintain a comprehensive, written policy prohibiting harassment of any kind. Any employer that has not yet adopted a written policy against all forms of unlawful harassment and discrimination, or whose policy addresses only sexual harassment, should waste no time in implementing and publishing a comprehensive, written policy prohibiting all forms of unlawful harassment and discrimination and establishing procedures for reporting complaints of harassment. Employers needlessly put themselves at risk by failing to maintain an effective written anti-harassment policy; all employers, no matter how large or small, should have a comprehensive written policy.
• Maintain effective procedures for the reporting and investigation of harassment complaints. A comprehensive written policy is a vital first step, but every employer must further ensure that its practices are consistent with its policy, by maintaining a readily available procedure for employees to report complaints of harassment and for the effective investigation of such complaints.
• Train managers to prevent and stop harassment. Managers play a crucial role in stopping and preventing harassment and discrimination in the workplace. They are the employer’s eyes and ears and should be given appropriate training to prepare them to identify and redress incidents of harassment and discrimination as they occur.

A related issue that may arise in the current environment is dealing with an employee who expresses an unpopular political view. Emotions are running high, and political discussions in the workplace can lead to disruptions. Employers in the private sector should be aware that employees do not have an inherent right to discuss non-work–related issues at work. If management allows such extracurricular discussions (as most employers do), employees must be respectful and tolerant of different opinions. Employers have the right to put a stop to political discussions that disrupt the workplace, impair working relationships, or undermine a manager’s authority. Employers should be careful, however, not to take adverse employment action against an employee based upon political views; under the laws of most states, discrimination and harassment on these grounds is unlawful.

Stress-related illnesses and conditions

Immediately after the terrorist attacks, many employees, particularly in and around New York City and Washington, D.C., needed time to recover emotionally from such life-altering events. For some employees, this meant time off from work; others suffered a decline in productivity. These kinds of reactions were understandable, even expected. But while most employees have now resumed their normal working routine, some have not, and their inability to do so might be compounded by the government’s continued warnings to be on high alert for additional terrorist attacks.

As a general matter, a claim of job stress, without more, will not excuse an employee from adherence to an employer’s attendance, lateness and productivity policies. The condition known as Post-Traumatic Stress Disorder (“PTSD”) raises additional questions, however. PTSD can arise from exposure to an extreme traumatic event, resulting in one or more of the following symptoms: intrusive memories, hyperarousal, and avoidance behavior. What’s more, individual predispositions may cause additional reactions to traumatic stress such as panic attacks, depression, and substance abuse.

Employees with PTSD and similar stress-related conditions are potentially covered by the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), as well as by state and local disability discrimination statutes. These laws may limit an employer’s rights to control employee attendance, lateness, and, to some degree, even work performance. Moreover, a compassionate attitude toward employees who suffer genuine stress-related conditions is good business: not only is such compassion legally mandated in some circumstances, but it may also have a positive effect on overall employee morale and loyalty.

The FMLA provides that eligible employees may take up to 12 weeks of unpaid leave in a 12-month period in the event they are unable to work due to a “serious health condition.” Under some circumstances, this medical leave may be taken intermittently (that is, in separate blocks of time). Covered employees may also take FMLA leave in order to care for a parent or child, or another immediate family member who suffers from a serious health condition. Conditions such as stress-related anxiety or depression, as well as PTSD, certainly could qualify as serious health conditions under the FMLA, depending on the severity of the condition.

Under the FMLA, an employer is permitted to verify the nature and severity of an employee’s claimed basis for requesting FMLA leave. The employer may require medical certification of the serious health condition by the employee’s health care provider. The employer may thereafter request the employee’s permission to contact his or her health care provider for clarification of the information contained in the medical certification, and may (under certain circumstances) seek a second and even a third opinion from other health care providers. During the leave, an employer may require periodic updates on the employee’s condition and prognosis for return to work. Additionally, while an employee is taking intermittent leave, the employer may temporarily transfer him or her to an available alternate position (at the same pay and benefits) that better suits the employer.

A medical condition qualifies as a “disability” under the ADA if it substantially limits one or more major life activities. Long-term and debilitating depression, PTSD, or similar conditions may qualify as disabilities requiring reasonable accommodation under the ADA. Appropriate accommodations for such conditions might include work schedule adjustments, temporarily reduced working hours, and leaves of absence. According to the EEOC, working from home may also be a reasonable accommodation when the disabled employee’s essential job functions can be performed from home without undue hardship to the employer. Not all federal courts have agreed with the EEOC in this regard, however. Specifically, the Seventh Circuit Court of Appeals has ruled that, as a matter of law, working at home is not a reasonable accommodation. Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996). Notably, an employer need not lower its performance standards to reasonably accommodate an employee with PTSD or any other disability.

Finally, some employees without a serious medical condition or qualified disability nevertheless will seek accommodations from their employers to assuage their fears and concerns brought on by the terrorist attacks. For example, employees who travel as part of their job may now be reluctant to fly. Employers faced with such issues should consult counsel to determine an appropriate resolution.

Military leave issues

In the wake of the attacks, the Pentagon reported that it expects to call to active duty as many as 47,500 members of the Reserves and National Guard. Employers should be aware of their responsibilities to these employees.

The Uniformed Services Employment and Re-Employment Rights Act (“USERRA”) covers members of the military who leave work for military service for up to five years. USERRA prohibits discrimination in employment, re-employment, promotion, pension rights, and health care benefits on the basis of military membership or service. If called to duty, reservists must provide their employers with advance notice of their orders, unless precluded from doing so by military necessity. Employers may seek temporary deferral of an employee’s call to service on a case-by-case basis, but the final decision rests with the military authorities.

Following their tour of duty, reservists who wish to exercise their re-employment rights generally are guaranteed reinstatement following their military service or training, although there are some exemptions and limitations to this right. Time limits for reservists to return to work range from 8 hours to 90 days, depending on the duration of the reservists’ orders. Most significantly, reinstatement must be to the same or similar job, and returning employees must be given the status, pay, and benefits they would have attained had they been working continuously through their period of military service.

Employers should also be aware that USERRA limits their ability to terminate re-employed reservists. Under the statute, if the employee served for more than 30 days, for the first 180 days from reinstatement he or she may only be terminated for “cause.” If the employee served for more than 180 days, the prohibition on termination except for cause extends to one year. USERRA does not define “cause,” but courts considering a claim would likely look to the employer’s handbook or policies, as well as common-law definitions in the law of the state in which the employment relationship is maintained, to assess what constitutes a terminable offense.

Unplanned downsizing

The state of the economy was weakened before September 11, and the attacks, from a business perspective, made a perilous situation significantly worse. For some employers, the fallout from September 11 led to unplanned reductions in force or an increase in the number of planned layoffs. These terminations could implicate the Worker Adjustment and Retraining Notification Act (“WARN”), which requires timely notice of a mass layoff or plant closing to affected employees. The rules relating to WARN are by no means straightforward, and any employer of 100 or more employees facing the prospect of significant layoffs should seek the advice of counsel as soon as possible.

The WARN Act generally requires 60 days advance written notice of a mass layoff or plant closing. Such notice must be provided to affected employees, any affected unions, the state dislocated worker unit, and the mayor or other local elected official where the affected work site is located. Less than 60 days notice may be permissible in the event layoffs are necessitated by “unforeseeable business circumstances,” so long as the employer gives as much notice as is practicable and explains why less than 60 days notice was given.

Whether or not WARN is triggered, employers who undertake any reduction in force should:

• Base individual layoff decisions on legitimate business reasons (e.g., job performance, skill set, seniority, flexibility, other economic justification);
• Document the decision-making process with objective, verifiable facts;
• Analyze the proposed layoff list to ascertain whether the decisions may have a disparate impact on the basis of age, race, gender, or other protected characteristic;
• Follow all company policies and procedures;
• Give notice of continuing health benefits under the federal law known as COBRA;
• Consider adopting a severance plan under the Employee Retirement Income Security Act (“ERISA”);
• Consider offering severance pay in exchange for a release of claims and be sure to prepare legally effective separation agreements;
• Have final paychecks ready, including pay in lieu of accrued but unused vacation, overtime, bonuses, and commissions; and
• If applicable, give written notice pursuant to WARN.

 

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While the events of September 11 were entirely unprecedented, the laws that govern the obligations of employers in dealing with the fallout are familiar ones. Employers who make a special effort to know their rights and obligations under the FMLA, ADA, WARN Act, and USERRA will be in a stronger position to address the workplace issues arising from these events.