Trying to Reason with Hurricane Season! Is Your Workplace Prepared?
It’s that time of year again – hurricane season! As Floridians, we love the summer, sand, seashores, and the sea. But, sometimes out beautiful home can get intense and we have to take action. I have always said hurricanes are the best of all the natural disasters because we get advanced notice – usually a week or maybe two. Tornados, floods, tsunamis, pandemic outbreaks, or terrorist attacks are not as kind, but we can and must do some planning before disaster strikes. As employers and HR professionals, you are on notice – disasters do happen and your employees, your community, and your governments expect you to prepare.
Here are just a few tips to consider. For more detail, I will be presenting this topic during my breakout session at HR Florida this month. Come join me for the discussion.
- Risk Assessment – What Are Your Major Threats?
A disaster plan must consider both man-made and natural disasters; however, each employer needs to evaluate threats to which its workplace is particularly vulnerable. Risk assessment can range from retaining an engineering study to a simple self-assessment. The specific industry, size, and scope of your business will determine your risk assessment needs. Additionally, you need to find out what disasters are most common to the areas in which your business operates.
FEMA’s website provides information regarding the identification of potential risks to your business and the specific type of harm that may result from various forms of terrorist attacks, including: explosions, biological threats, chemical threats, nuclear blasts, and radiological dispersion devices. FEMA’s website also contains information regarding how to handle a bomb threat, how to identify a suspicious package or letter, and how to treat suspicious packages and letters once they are identified.
- Major Legal Issues – Safety and Pay
Even in the wake of a disaster, you generally must still comply with applicable employment laws and the failure to do so may subject you to liability.
a. The Occupational Safety and Health Act (OSHA)
OSHA standards cannot be ignored in the face of disaster, and OSHA continues to require employers to protect their employees against “recognized hazards” to safety or health which may cause serious injury or death. OSHA’s website (www.osha.gov) has established a page where employers can access more than 20 audio and printed guidelines to specific work practices dangers likely associated with clean-up and recovery, including flooding, electrical, fall protection, personal protective equipment, chain saws, mold, blood borne pathogens and bacterial issues, tree trimming, trenching, and heat exposure.
Employers also need to be aware that “employees do have the right to refuse to do a job if they believe in good faith that they are exposed to imminent danger, and good faith means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.” Imminent danger is defined as a “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” Employees must first approach their employer when they believe that working conditions are unsafe or unhealthy and the employee must generally satisfy four conditions before walking off the job. The four conditions include: 1) asking the employer to eliminate the danger and the employer then refusing to do so; 2) the employee genuinely believing that an imminent danger existed and the employee did not refuse to work for other reasons; 3) a situation where a reasonable person would agree that there is a real danger of death or serious injury; and 4) there is not enough time due to the urgency of the hazard to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
b. Wage Payments
The Fair Labor Standards Act (FLSA) and similar state laws require that employees continue to be paid for all hours worked, even in a time of a disaster. If time records are lost as a result of a disaster, the employer can pay the employee based on the number of hours normally worked or have the employees estimate as best as possible the number of hours worked. Additionally, the employer should also obtain written authorization from the employee allowing them to make corrections if more accurate time records become available. The best way to avoid this type of situation is to store all payroll records off-site.
In the event that your employees are not working after a disaster, you do not have to pay them unless you have a policy providing pay under these types of circumstances. For exempt employees, an employer must pay those employees their entire salary if they work any part of the workweek. No compensation is due, however, if the exempt employee does not work at all during the workweek.
- Training and Testing Your Disaster Plan
The best way to ensure that your disaster plan is going to be effective is through repeated training and testing with your employees. There must be regular communication with employees before, during, and after an incident through the use of newsletters, intranets, staff meetings, and other internal communication tools to communicate emergency plans and procedures. Additionally, drills and exercises should be preceded by training seminars or workshops where participants are trained in their emergency responsibilities. After each training session, the disaster plan should be re-evaluated and procedures should be refined based on lessons learned.
ASIS International (ASIS) is an international organization that promotes the educational development of security professionals, and its website (www.asisonline.org) has a Disaster Preparation Guide that includes an outline for training general employees and management in disaster response. General employee training should assure that all employees automatically react to warnings and know any duties they are expected to perform during an emergency. Since management will play a leadership role during an emergency, it is important they receive detailed training, which should include how the business will coordinate with the government and other resources.
Phillip B. Russell
Ogletree Deakins
@phillipbrussell
https://www.linkedin.com/in/phillipbrussell/
https://www.ogletree.com/people/phillip-b-russell
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