Tornadoes, heavy rains, flooding, high winds, ice storms, blizzards and heavy snow have caused several deaths, widespread damage and devastation to Colorado over the years. The entire world has also recently gone through several years of challenges due to COVID-19, a pandemic forcing businesses to change the way they operate and, in some cases, shutter entirely. When disasters like these strike a business, regardless of whether it emanates from natural or human causes, there will likely be significant human resource issues to quickly address. During times of disaster, every business must make the decision of whether and how to move forward. A business’s employees are a critical component of any management and recovery plan. If a business fails to properly manage employees and help meet their needs, other recovery efforts may be futile. Even if the employer ultimately decides a specific facility or business function cannot reopen, it will be essential to respond to employee concerns to avoid or minimize the risk of legal liability.
Sound disaster planning requires for human resource issues to be recognized first and in doing so adequate attention must be given to both preventive and remedial. The goals are to:
comply with local, state and federal laws and regulations
meet employee needs at a time of crisis
preserve the human capital necessary to enable the company to recover from the incident and resume productive operations.
This chapter will provide an overview of some of the fundamental issues that need to be addressed in a post-emergency incident response. From this, preventive steps can be devised that can maximize the chances that a business will be able to recover.
In most disasters, employees will be disrupted from conducting their normal work activities. For instance, employees may not have an office or a factory to return to if there was a fire or explosion. In the event of a natural disaster such as a flood or hurricane, they may be unable to access the work site for a considerable period of time. In the event of bioterrorism or a disabling cyber-attack, there may be no way for employees to use the facility or access the information necessary for them to do any meaningful work. In the context of a global pandemic, an employer may not be able to have employees co-located due to communicability and space constraints.
Immediately after a disaster strikes, it is important for a company to let the employees know whether they should report to work. This may not be such a simple process depending on the type of the disaster, the number of employees the company has, and the method used to convey the message. Each company should have a policy in place that details how each employee will know whether to report to work in the event of a disaster. Some methods for conveying the message to the employee include mass company-provided text messaging, posting a message on the company’s website, activating a telephone tree, posting a message on the entry point of a job site and having local media alert employees through the media. If possible, business leaders should make efforts to connect with their employees via interactive web chat platforms to assure them that the business has a plan to handle the disaster and to communicate the elements of that plan.
Federal, state and local efforts to protect employees from surprise plant shutdowns may complicate your task. At the federal level, the Worker Adjustment and Retraining Notification Act (known as WARN) requires covered employers, who have 100 or more employees, to provide 60-days’ advance notice of a plant closing or mass layoff. See Plant closings and mass layoffs. Even a temporary shutdown of a plant may be covered by WARN if the temporary shutdown results in an employment loss during any 30-day period for 50 or more employees. Besides notifying employees, WARN requires companies to notify state or local officials. Failure to give the necessary notice can leave the employer exposed to governmental fines and an obligation to continue to pay wages and benefits to the affected employees. At a time when marshaling corporate resources may be critical, having exposure under WARN may prevent a company from being able to reopen.
WARN does provide exceptions to the 60-day notice requirement if the plant closing or mass layoff is due to any form of natural disaster, such as a flood or earthquake or if it is caused by “business circumstances that were not reasonably foreseeable as of the time notice would have been required.” However, these exceptions are very narrowly construed. Indeed, WARN provides that even when there is a justifiable reason for giving less than 60-days’ advance notice, the employer “shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.” In several reported cases, employers have been held liable for the full 60 days of wage and benefit obligations because they failed to meet this requirement. It is important that a business be able to meet the reduced notice standard even if it no longer has access to its employment records in either hard copy or electronic form.
In a unionized setting, the employer may not be free to respond unilaterally to the concerns that must be addressed immediately after a disaster. Under some union contracts, the union is treated as having shared governance with the employer over such issues as wages, hours and other terms and conditions of employment. Depending on what the union contract says about the issue, the company may have to begin immediate negotiations with the union business representative to avoid incurring liability.
Even if the union contract allows the employer to take unilateral action in laying off employees, transferring production, relocating bargaining unit work and other issues, employers are still required to negotiate in good faith with their union counterparts over the effects of these decisions on bargaining unit employees. The failure to engage in so-called “effects bargaining” may subject the company to sanctions by the National Labor Relations Board (NLRB), including being ordered to reopen a plant under certain circumstances.
Disasters rarely affect a company without affecting its employees. Human resources must be prepared to respond by meeting the employees’ immediate needs.
When a disaster strikes, employees must be paid for hours that the employee has worked. They may now need the money more than ever. The Fair Labor Standards Act (FLSA) and many state laws require that employers pay the full wage and overtime compensation to an employee for the hours that the employee worked prior to the natural disaster. Not only is the payment of accrued wages a contractual obligation, but many states also have wage payment laws that make it a criminal violation for an employer to fail to pay wages when due and grant employees liquidated damages, statutory penalties or attorney’s fees. Moreover, the majority of these laws extend beyond the corporate employer to the officers of the corporation who have the authority to pay the wages. While coping with a disaster, the last thing a CEO wants is to be arrested for a criminal law wage payment violation based on the complaint of employees who are upset about not being paid. See Wages and hours. Once a natural disaster occurs, the FLSA generally does not require an employer to pay a nonexempt employee for hours the employee would have typically worked. Alternatively, for exempt employees, an employer is typically required to pay the employee’s full salary if the business is closed due to a natural disaster.
Benefit plan administration also needs to be maintained during a disaster. Health, life insurance and disability claims still need to be processed and resolved. If a natural disaster occurs, an employer must give information to its employees about the status of their benefits and how their benefits will be maintained. Additionally, since employees may be using medical benefits, employers need to address how these benefits will be maintained during a disaster. See Benefits.
If the disaster involved particularly traumatic events, such as an incident of workplace violence or a natural disaster in which lives were lost, the survivors may need counseling services to debrief them on the incident and to begin grief counseling. Providing these services is not only humane, but it may also help in any future litigation to dispel allegations that the employer was uncaring or hostile toward employees following the incident. Additionally, security, biohazard or other personal protective measures may need to be put into effect. While it is legally essential to offer employees a safe and healthy workplace, it is also practically necessary for employees to have the psychological comfort that it is safe for them to come to work. See Safety and health.
Since passage of the Americans with Disabilities Act (ADA), employers have been prohibited from making many types of medical inquiries. See Disabilities and reasonable accommodations. Yet, such information is essential if an employer is to implement an effective plan for evacuating employees who suffer disabilities. The Equal Employment Opportunity Commission (EEOC) has issued guidance on three circumstances when it is permissible for an employer to seek medical information:
Although the ADA generally requires confidential treatment of medical information of applicants and employees, an exception permits first aid and safety personnel to have necessary information. Medical professionals, emergency coordinators, floor captains, colleagues who act as buddies, building security officers and other non-medical personnel who oversee evacuations qualify as first aid and safety personnel. These individuals are entitled to only that portion of an individual’s medical information that is necessary to carry out a first aid or evacuation plan.
If workplace deaths are involved, OSHA must be called in within eight hours so that an investigation can be launched. This is in addition to any investigation being conducted by local law enforcement, the Environmental Protection Agency, the Chemical Safety Board or a host of other agencies. When a disaster strikes, a team of company representatives must be ready to meet with OSHA or these other agencies, guide the inspection process and oversee responding to government requests to inspect facilities and documents and to interview employees. This is a particularly sensitive issue because OSHA not only imposes enormous fines, but it can also refer matters for criminal prosecution. See Safety and health. Employers are encouraged to immediately contact legal counsel to assist them during these government agency meetings or in responding to government requests for inspection or information.
Any in-patient hospitalization, amputation or eye loss must be reported to OSHA within 24 hours of the event.
The physical loss site is not the only company property that will need to be protected against intentional, accidental and/or weather induced changes in condition. A fire, flood, explosion or other disaster may mean that large numbers of outsiders suddenly have a legal right to enter the premises. Trade secrets or confidential proprietary information may be obtained by competitors. Therefore, access and information security controls need to be imposed. Centralized coordination must be used to control document production, access to witnesses and inspection of the pertinent physical evidence. Individuals who are given access to the site may need to sign releases or agreements to protect proprietary information. If not already in existence, restrictions will need to be implemented, even on law enforcement agencies, concerning duplication of confidential documents or photographing sensitive equipment or installations.
In the immediate aftermath of a disaster, employees will naturally worry whether they will have jobs to go back to or whether those jobs will be secure. They are particularly vulnerable to overtures from the competition. It will not help to rebuild the plant if all of the customers have been pirated away with the sales force. An effective way to prevent this is to identify key employees and secure their commitment with binding agreements prohibiting them from working for the competition for a period of time after their own employment ends. These can be combined with confidentiality and no-solicitation agreements to safeguard the kind of non-balance sheet assets that will never be covered by an insurance policy. See Restrictive covenants and trade secrets.
Many proactive steps can be taken to be prepared for a crisis. These actions allow corporate executives to concentrate on other important issues as they are confident that they have reduced their risk of liability and satisfied the immediate needs of one critical stakeholder group: the employees. The following items should be considered in advance of a crisis:
prepare a plan to reach employees in time of crisis when normal channels of communication and access to records may not be available
arrange contingent plans to meet payroll obligations and to ensure that benefit plan claims can be processed and resolved
check with Employee Assistance Plan provider to ensure that crisis counseling services are available if needed
develop a plan to respond to reasonably anticipated events, such as an incident of workplace violence, so that internal players know their roles and outside providers such as security consultants understand in advance what will be required of them
protect intellectual and human capital, not only in the form of trade secrets, but also by preventing employees from deserting en mass to competitors.