Practice Management: Employment Issues When Disaster Strikes: Employer Preparation and Response

Vol. 14 No. 2

Sandra R. McCandless is a partner with SNR Denton in San Francisco, California, where she specializes in employment law and litigation. She is a former chair of the TIPS Section
(2005 –2006) and can be reached at sandra.mccandless@snrdenton.com.

By the time disaster strikes, it is too late to mitigate the effect on a business and its employees’ health and safety. Legal liability may exist under the Occupational Safety and Health Act, state workers’ compensation statutes, and common law, which could have been avoided with sufficient preparation.

Employers should take the following steps in preparation for, during, and after a disaster to limit its effects, comply with legal requirements, minimize potential liability, and enable a restart of business that is as speedy as possible.

1. Enlist the support of upper management. Obtain a “buy in” from entity leaders about the need to incorporate disaster planning into an entity’s overall safety program. Disaster planning activities can be jump-started by an entity-wide message from leadership about their importance.

2. Form an emergency planning team. A planning team is essential to implement planning activities for any emergency, from a natural or man-made disaster to an isolated incident of violence. Members of the planning team should come from upper and line management, the human resources and safety departments, engineering and maintenance, information technology, and community and media relations. The legal department or outside counsel should provide advice as necessary. The unionized employer should fold the union’s designated representative into the planning process.

3. Write or update the disaster plan. Unless disaster planning is committed to writing, there will be no true disaster preparedness. An outline for developing the components of a plan can be found in the Federal Emergency Management Agency’s “Emergency Management Guide for Business and Industry, A Step-by-Step Approach to Emergency Planning, Response and Recovery” (the FEMA Management Guide), which is available online at http://www.fema.gov/business/guide/index.shtm. The guide, which was prepared in 1993 with the assistance of private companies and industry associations, addresses the entire emergency planning, response, and recovery process. It is still one of the best and most comprehensive overall resources on this topic.

4. Plan for specific types of disasters using the FEMA Management Guide. The Guide is national in scope and contains sections on specific planning for each of the most commonly encountered hazards and disasters in particular localities. FEMA’s more recent publication, “Are You Ready? An In-Depth Guide to Citizen Preparedness,” http://training.fema.gov/EMIweb/is/is22.asp, is an additional resource for nuclear power plant emergencies and biological and other terrorism threats. The website of the American Bar Association’s Committee on Disaster Response and Preparedness at www.americanbar.org/groups/committees/disaster.html also contains many resources and references for disaster planning.

5. Develop a relationship with local emergency responders. Emergency responders in your area will have information and plans in place to assist companies when disaster strikes.

6. Address the basics first. Ensure that evacuation procedures and routes are in place and that employees have been trained about them. Purchase necessary emergency kits and other first aid supplies. Anticipate the need for assistance to individual employees who are disabled or not fluent in English. Address these basic matters early in the planning process. 

7. Conduct training activities. Training can include tabletop exercises to address responsibilities and plans for emergency scenarios, followed by walk-through drills. Perform the actual functions that would be conducted in an emergency, evaluate systems, and identify problem areas for improvement. The overall employee training process should include information on the location and use of emergency equipment and notification, warning, and communications procedures.

8. Plan for communication to, from, and among employees during and after a disaster. Employees will need a great deal of instruction if they are onsite during a disaster. In the immediate aftermath, account for the whereabouts and safety of all employees and their families. The employer should be prepared to disseminate this information as soon as possible with updates thereafter. When and how operations will resume and in what order, as well as updated contact information for employees, also should be disseminated promptly. Plan for a worst-case scenario with alternative communications such as website messages and a number to call that is in another area of the country.

9. Engage in immediate response and recovery activities. The emergency response team should establish priorities for recovering full operations and organize subteams for the work that will need to be done following a disaster. Those tasked with overall responsibility for recovery will need, among other things, to continue to assure the safety and health of employees; restore equipment and property; assess ongoing hazards; maintain security; assure customers and suppliers that business is ongoing and full operations will soon resume; arrange for continued payroll; conduct an employee briefing; prepare the necessary information, data, paperwork, and photographs for the insurance carriers; and coordinate with government agencies and the media as necessary. Expect to have your exempt employees work well beyond a regular workday and to pay overtime to non-exempt personnel who are essential to the recovery process.

10. Provide temporary flexibility to your employees. Be prepared to be flexible in the face of unanticipated employee needs following a disaster by providing such accommodations as leaves of absence, alternative working arrangements, telecommuting, work hour reductions, and alternative work locations. This is a time to make full use of the employer’s Employee Assistance Program (EAP) or, in the absence of an EAP, to provide crisis counseling. Envision a company or firm in which no disaster planning has occurred. No one has any specific instructions or idea about what to do when disaster strikes, and the business may have to rely on emergency responders instead of its own pre-planned procedures. Then envision instead an internal disaster team with assigned responsibilities, employees trained about where to go and what to do, and a plan for getting employees back to work and the operation up and running again. The differences between these two employers will make all the difference to the future of the business. While this article has addressed the employment-related aspects of disaster planning and response, good preparation for the necessary activities that will occur during and after a disaster will minimize the disaster’s effects upon the business as a whole.

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