Return to Transcripts main page

American Morning

Fear of Flying Versus Fear of Firing

Aired November 23, 2001 - 08:41   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: Ever since September 11, many workers have been afraid to fly for business. So the question is can you be fired if you refuse to fly for your job?

Well, for some answers to this, we turn to employment law attorney Deborah Kelly, who is in Washington this morning. Good morning and happy day after Thanksgiving to you.

DEBORAH KELLY, EMPLOYMENT LAW ATTORNEY: Good morning to you.

HARRIS: Well, is that a really big problem across the country that you're seeing quite a bit?

KELLY: There are certainly people are scared after September 11. That's obvious. The question is whether or not what they're asked to do by their employer is something that immobilizes them and they can't do it at all because of fears or whether it's something that they have to shake off because, after all, we're in a war for five years, maybe. If you are someone who's in charge of sales in the whole West Coast and you say you can't get on an airplane, you can't do your job and your employer can't be expected to fall apart just because you're now nervous to get on an airplane.

HARRIS: Yes, well, and that's just it, the employer is in a position where you're doing something you're supposed to be doing, something that that employer has relied upon you to do for some time before.

KELLY: Right.

HARRIS: What's the lie -- who is most liable in this situation then?

KELLY: Liable in terms of if you won't do it?

HARRIS: Yes, exactly.

KELLY: OK, if an employee, the guts of the employee's job, what we call the essential work functions of someone's job requires them to get on an airplane to do their job and they won't do it, they can lose their job, not because the employer is a creep who says I don't really care that you're scared, but because what's the employer supposed to do? How are you going to cover the entire West Coast if you don't get on an airplane? And, again, this is not something that we know will end in a week or two weeks where the employer could just wait it out. We don't know how long it's going to go on.

So ultimately the employer could fire the employee and that would not be illegal unless the employee was so flipped out about it that it turned into something that was a medically diagnosed long-term disability, in which case they could take leave or ask for an accommodation.

HARRIS: But isn't the employer in this case in something of a catch-22? Because if they do go ahead and haul the employee on the carpet for this and hold them accountable, they look like the bad guy if they do it.

KELLY: They certainly do look like the bad guy. But I think it would depend upon the individual. And for an employment lawyer to say that sounds like heresy, because you don't want to use discretion, you want to treat everybody the same way. But, for example, if it's someone who just lost their relative this month from the New York flight to Santo Domingo, you would, if it were me, I'd be a little bit more sensitive to that person than someone who says I've never liked flying now, I really don't want to fly, but please pay me the exact same amount of money even though I really can't do my job anymore. That person you're just going to have to say look, we're all a little bit scared. Look at what is going on with airline security. You really do have a greater chance of losing your life in a car than in a plane so suck it up and board the plane or take another job.

HARRIS: Yes. Well, let me ask you about this. In light of that and of the changes that we've seen in the workplace that have come about since September 11, does an employer or should an employer actually be the first one to broach topics like this and go to the employee and talk to them first?

KELLY: Well, I think initially, after September 11, most good employers did talk to their work force and, for example, I'm in a big law firm which is not exactly an exciting target since you trip on a curb in D.C. and you hit another law firm. But we had, because there were fears here in our, of our employees, we had our mail room scanned for anthrax, because we are in Washington, D.C. Did we have to do that? No. We did it because we were trying to listen to some of the employees' fears.

Now, if the employees said I want an armed guard with me at all times as I walk around the law firm's offices, we'd say well, that ain't happening. So you have to figure out what's reasonable. Do you work in the CIA? Do you work in the State Department or are you "just a lawyer?" It's going to depend.

HARRIS: Yes. Let me ask you something else. I saw some comments that you made about some other changes that you've observed since September 11.

KELLY: Uh-oh.

HARRIS: And you say that you're seeing and hearing about more and more people praying in the workplace? Is this becoming an issue? KELLY: Yes. Yes. That's interesting. I can't remember in all the years that I've worked people just getting together for prayer sessions. Now, if you're in the private sector, there's no first amendment issue. But I have seen and heard of in more workplaces just getting together for prayer and people comforting one another, praying for the victims of September 11 and their families and just praying for peace. And it's not illegal. It's a little bit odd. But that is definitely something that is new.

HARRIS: And, again, if an employer cracks down on something like that, the employee, again, catch-22, bad guy coming in on that kind of a thing?

KELLY: Right. I think what the employer has to watch out for, if it's a state or a government that's a whole different story. But in the private sector I think when I've seen it most of the guidelines are let's make this ecumenical. This is not going to be a religion. This is generic prayer for generic good will and people and not make it with one religion so that the other religions feel uncomfortable.

And, of course, you don't have to go.

HARRIS: Of course. There you go.

Well, thank you for coming in and explaining all this for us this morning. Deborah Kelly, good luck to you.

KELLY: Thank you. I'm going to Harry Potter.

HARRIS: Happy holidays.

KELLY: Thank you.

HARRIS: You've got tickets?

KELLY: I'm getting soup and Harry Potter. Yes, I do.

HARRIS: Yes, he's been selling out in almost, in all the theaters here in town.

KELLY: Yes, well, I'm ready to go.

HARRIS: Have fun. I hear it's a great show.

KELLY: Thank you.

HARRIS: We're going to look at it coming up, as a matter of fact, this morning.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com