Employer Preparedness and Response to Workplace Emergencies Following the September 11 Tragedies

Following the events of September 11th, it has become crystal clear to employers that they are all susceptible to catastrophic emergencies which can have overwhelming consequences for them and their employees, officers, directors, creditors, shareholders and insurance carriers.

Thus, emergency preparedness and quick response are now more important than ever and require serious attention from every employer in this nation's economy.

Given these new challenges, how should an employer begin to prepare for workplace emergencies that run the gamut from violent employees to terrorist sponsored biological attacks? This paper will provide the reader with some insight into coordinating employer preparation and response in the face of these new workplace challenges.

1. Developing an Emergency Action Plan.

The first step on the road to emergency preparedness is to prepare an emergency action plan. OSHA requires that all employers who are required by other OSHA standards (e.g., 1910.157, 1910.119, 1910.1047, 1910.1050, 1910.1051 and 1910.120) to deal with emergency situations must maintain written emergency action procedures to ensure employee safety from fire and other emergencies. 29 C.F.R. § 1910.38(a). An OSHA emergency action plan must contain certain required elements, including the following: (i) emergency escape procedures and emergency escape route assignments; (ii) procedures to be followed by employees who remain to operate critical plant operations before they evacuate; (iii) procedures to account for all employees after emergency evacuation has been completed; (iv) rescue and medical duties for certain employees; (v) the preferred means of reporting fires and other emergencies; and (vi) the names and job titles of persons or departments who can be contacted for further information or explanation of the plan. 29 C.F.R. § 1910.38(a)(2). OSHA and its regulations detail the structure, procedures and employee drills required for an appropriate emergency evacuation plan. Covered employers are required to: (1) establish alarm systems to notify employees of an emergency; (2) train employees in emergency response; (3) periodically review procedures with employees; and (4) create evacuation plans for emergency situations. 29 C.F.R. § 1910.38(a)(3)-(5).

While most employers are aware of their compliance obligations under 29 C.F.R. § 1910.38(a), recent events have caused them to think beyond existing regulatory requirements. Now, employers must think "outside the box" to issues of employee background checks, corporate travel security, cyber-terrorism, bio-terrorism, and disaster recovery. A number of written resources are available to assist companies in this process. For example, the Federal Emergency Management Agency ("FEMA") publishes a useful guide that sets forth a step-by-step approach to emergency planning, response and recovery for companies of all sizes. The Emergency Management Guide for Business and Industry, provides advice on how to create and maintain a comprehensive emergency management program. Although published before the events of September 11th, this guide provides a solid starting point for employers to deal with many of the new challenges they face.

The Guide speaks for itself. Thus, the author has chosen not to restate it. However, it should be noted that the key to success in any emergency action plan is to assemble the appropriate team to undertake the project. Team members should have a wide range of expertise or, at a minimum, be cloaked with sufficient authority to address any workplace emergency. The team should assess the risks for various workplace emergencies. The responsibilities of the team members should be clearly outlined and they should be sufficiently trained.

An emergency action plan should also take into consideration the possibility that employees may be displaced from their normal work locations. Thus, there should be some planned alternative place for performing the employer's key functions. Although an unpleasant subject, the emergency action plan should take into consideration the issue of possible senior management succession. Many states have enacted statutes that allow companies to adopt bylaws that become effective during certain emergency situations. See, e.g., Del. Code Ann. 8, §110 (1953). Although plans will be constantly revised to adapt to the challenges of the day, they must contain certain fundamental principles. This assures that action in the face of chaos is second nature.

2. Increasing Security in General.

In addition to developing and/or revising their emergency action plans, employers should reevaluate their policies regarding security at all levels of their business. Many will choose to hire professional security staff. Other security measures may include:

implementing more stringent policies against carrying weapons on company property
monitoring the non-business use of computers
reviewing and improving the security of hazardous materials
requiring employees to wear identification badges
restricting access to parking areas close to company buildings or moving parking lots farther away from these areas
installing metal detectors at points of entry into the workplace, and/or