Disaster Relief - Law Firms Planning For Natural Or Man-Made Disasters: Lessons From The Post-Katrina World

Tuesday, November 1, 2005 - 01:00

Editor: Does every business really need a disaster plan?

Ford: Yes. The content and scope of a disaster plan will vary from company to company based on such factors as the nature of the company's business, the number of employees and geographic location. Coming up with how the company will cope with various natural or man-made disasters can be viewed as another way of doing business planning. For example, if the company does not already have a records management program, the disaster plan may be a silver lining of providing the impetus for organizing the company's records.

Editor: Should my emergency management plan include a response to the threat of workplace violence?

Ford: Yes. Workplace violence is a type of disaster. The Department of Labor noted 900 homicides have occurred at work and about 2 million workers have been attacked by other workers over a 10-year period. This amounts to only one tenth of one percent of all workers in the U.S. Even though occurring rarely, however, workplace violence can have a debilitating effect on a company's workforce.

Editor: What elements should be included in an emergency management program for a business?

Ford: Each company should tailor its emergency management program to the types of disasters that it anticipates. For example, is the geographic area in which its facilities are located prone to floods, earthquakes, blizzards or other natural disasters?

Consideration should also be given to what assets would be damaged as a result of the disaster. For example, if a company's biggest asset is information or technology, then it should address how its information is backed up and where it would be accessible in the event of a disaster. The impact on the company's employees, clients, and contractors is another critical element.

The development of an emergency management program should begin at the intersection of the anticipated risks and their impact on the company's assets and personnel.

Companies should develop checklists to use in coordinating post-disaster communication and outreach. The disaster checklists should include not only employees' names and contact information, but also the names and contact information for their next of kin. The names of the company's key suppliers and their contact information should also be included. Of course, it's important that all this information be available off-site, so that it's still accessible even if the company's office space is not.

Communication systems are also a critical component of an emergency management program. For example, many companies have set up an 800 number for employees to call for information about office closings when roads are impassable in the event of a snow storm or other natural disaster.

A company policy should be distributed so that all employees are aware of the plans that the company has put in place for responding to a disaster.

Editor: What websites are good sources for information about disaster planning?

Ford: The government has a wealth of information through OSHA and other websites that can be very helpful to a company putting together an emergency management program. For example, the CDC website has some helpful information about how to identify when it is safe to resume business operations at a site following a disaster. FEMA has posted useful information at www.fema.gov/ areyouready.

Editor: How do I determine my plan for business continuity in the event of a natural or man-made disaster?

Ford: Some insurance policies cover events of business interruption. Some business interruption policies provide for continuity of payroll for a period of 90 to 120 days, which can be very helpful in helping a company to avoid losing its investment in employee training and to maintain morale until it can put people back to work. Treatment of its employees also can be a critical factor in how a company is viewed in media reports of a disaster.

Editor: What are the HR-related elements of a disaster preparedness plan?

Ford: While many companies focus their emergency management programs on their physical assets, it is equally important to address HR issues. For example, will the company have access to its wage-and-hour records needed to meet its payroll for work performed before the disaster but for which workers have not yet been paid? What process will the company follow if its wage-and-hour records are not available? If records are lost, the most common process is for the company to ask each worker for a statement of the hours they worked and to sign an acknowledgement that their statement was made in good faith.

Federal laws require that a variety of personnel records, such as applications and interview notes, be maintained for specified periods of time. Within the parameters of the company's budget, how will these be maintained so that they continue to be accessible in the event of a disaster? For example, will they be scanned in the ordinary course of business and housed on an off-site server?

Editor: If my company has a union, does it need to be part of my disaster preparedness planning?

Ford: Yes. Payment of wages during a disaster and many other issues are often the subject of collective bargaining agreements. The circumstances of when workers outside the bargaining unit can be brought in to help restore facilities or perform other work in the event of a disaster may also be addressed.

Editor: How might the company's Employee Assistance Program (EAP) provider help in an emergency management program?

Ford: An EAP provider often is recognized as a provider of counseling services to the company's employees. It may also be a good resource in a disaster by providing social work services in helping employees to find low-cost housing and access to community services.

Editor: How do I train my employees in disaster protocols?

Ford: Training should be practical. For example, fire and other drills should be targeted to making sure that employees know where to go and what to do in the event of a disaster. Training should be conducted every six-months or at another periodic interval. Because of turnover, companies need to keep re-training.

Editor: How can I encourage my employees to plan personally for disasters?

Ford: The EAP provider, HR or other specialist should tell employees to keep certain emergency information with them. Practical details should be included, such as the benefits of keeping emergency information on a laminated card. Those with special medical needs should be aware of the potential of a disaster and how that may impact their ability to access necessary medicine.

Editor: To whom within my organization should I assign responsibility for disaster preparedness?

Ford: I am afraid that if you assign disaster preparedness to your safety organization, it may not have the level of prominence and credibility in the organization that it needs. You may want to make it the project of a vice president for operations or similar senior-level individual. That person should report to the organization's leadership on a regular basis. The leadership needs to know what will happen to the organization's assets and personnel in the event of any disaster. I would make that person accountable for the training and policy development as well.

Editor: Please give some examples of employment-related legal or compliance issues that may arise post-disaster.

Ford: Some of these are a matter of existing law and others arise in the wake of a large disaster. Current legislation includes the WARN Act, which requires 60 days notice of a plant closing. If the facility is wiped out, there is an exception in the law for any natural disaster. This can get tricky. For example, what happens when a plant closes because a supplier was destroyed? You may or may not fit within the exception, and you may be required to provide 60 days pay to your employees.

The current laws that clients struggle with include USERA (Uniform Services Employment Rights Act), which protects an employee's job in the event of having to leave for military service. The law was amended under the Bio Terrorism Preparedness and Response Act to extend its protections to certain first responders. The definition of "first responders" encompasses workers who are deployed to perform such tasks as fighting fires, assisting veterinary teams, and providing mortuary services. Employers need to be aware of mandates under their applicable state laws as well.

In the wake of Katrina, Congress passed all kinds of legislation. For example, deadlines for filing I-9 Forms have been extended for businesses in parts of the Gulf Coast, the requirements for prevailing wages were dropped on certain projects and the deadlines for benefit plans filings were extended.

Because of the broad range and ever evolving nature of the laws and regulations, whoever is in charge of the company's disaster preparedness should be in charge of, or should delegate the responsibility for, being aware of the then-current legislative and regulatory mandates.

Another new development was the Internal Revenue Service's issuance of Notice 2005-68 to provide guidance to employers who adopted leave-based donation programs to aid the victims of Hurricane Katrina. Under these programs, employees elect to forgo vacation, sick or personal leave in exchange for cash payments that an employer makes to charitable organizations for the relief of victims of Hurricane Katrina.

The OSHA, CDC, DOL and other government websites should be regularly monitored to make sure that you are aware of new opportunities that some of these and other new pieces of legislation offer to you.

Editor: What resources are available for an employer to keep up to date on state laws and regulations related to emergency management?

Ford: Each state's department of labor has a wealth of information related to HR and other employment issues related to emergency management. Sometimes the state's commerce department serves as a good resource as well. Chambers of commerce periodically collect emergency preparedness information and advocate for local employers when they need resources to help them to be up and running following a disaster.

Please email the interviewee at jjford@vssp.com with questions about this interview.