This Practice Note discusses emergency preparedness and business continuity planning for private employers. It addresses the Occupational Safety and Health Act of 1970 (OSH Act) and its corresponding general industry standards, steps for effective emergency planning, employment law considerations, and strategies for continuing business operations.
To understand the importance of disaster planning, employers and their counsel need look no further than the events surrounding Hurricanes Katrina, Rita, and Sandy and more recently, Hurricanes Harvey, Irma, Dorian, and Laura, as well as the COVID-19 pandemic, west coast wildfires, and extreme weather in different parts of the country. Not only are there legal considerations an employer must evaluate, but there are also many logistical issues that arise when an emergency or disaster displaces a workforce.
This Note explains how employers can prepare for business continuity in case of an emergency or disaster. Specifically, it addresses:
Determined to do something about the high number of job-related deaths and injuries in the 1960s, President Nixon signed the OSH Act on December 29, 1970. The OSH Act covers all employers and their employees in the 50 states, and all territories and jurisdictions under federal authority (29 U.S.C. § 653(a)). The OSH Act is interpreted broadly to apply to places where at least one employee works and that work affects interstate commerce, even if the connection to interstate commerce is remote (29 U.S.C. § 652).
Therefore, the OSH Act covers almost every employer and its employees in varied fields, such as:
Agriculture.
Manufacturing.
Construction.
Longshoring.
Ship building and repair.
Architecture.
Medicine.
Charity and disaster relief.
Organized labor.
Private education.
However, the OSH Act excludes the following from coverage:
The self-employed.
Immediate members of farming families that do not employ outside workers.
Employees whose working conditions are regulated by other federal agencies, including mine workers, certain truck and rail workers, and atomic energy workers. However, the OSH Act still applies if the other agency's regulations do not specifically address the working conditions at issue.
Although employers do not have a specific duty under the OSH Act to protect employees from disasters, under the OSH Act's general duty clause, employers must furnish employees with a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm" (29 U.S.C. § 654(a)(1)). To prove that an employer violated the general duty clause, all of the following elements must be shown:
The employer failed to keep the workplace free of a hazard to which employees were exposed.
The hazard was recognized.
The hazard was causing or likely to cause death or serious physical harm.
There was a feasible and useful method to correct the hazard.
Therefore, if an employer is located in a disaster-prone region, the employer should plan accordingly to avoid possible violation of the general duty clause.
OSHA's Emergency Standards
Several OSHA general industry standards address planning for emergencies generally, which may include emergencies incident to a disaster. OSHA's general industry standards cover all industries that are not a part of the agriculture, construction, or maritime industries (29 C.F.R. § 1910.5).
In addition to EAPs, other ways employers can prepare their workplaces for emergencies include:
Fire prevention plans (FPP).
Portable fire extinguishers.
Fixed extinguishing systems.
Fire detection systems.
Employee alarm systems.
Design and construction of exit routes.
Maintenance, safeguards, and operational features for exit routes.
Emergency Action Plans
An EAP is a written document whose purpose is to facilitate and organize employer and employee actions during workplace emergencies. An EAP must be written, kept in the workplace, and available to employees for review. However, OSHA permits employers with ten or fewer employees to communicate the EAP to employees orally. (29 C.F.R. § 1910.38(b).)
The employer uses a fire detection system with alarms or devices that are delayed by more than 30 seconds for reasons other than a total flooding extinguishing system (29 C.F.R. § 1910.157(e)(3)).
The employer must comply with any of the following general industry standards:
The employer plans to evacuate all of its employees and rely on an outside party to provide emergency response to a hazardous substance release (29 C.F.R. § 1910.120).
Completing an FPP and reviewing it with employees reduces the probability that a workplace fire ignites or spreads. An FPP is a workplace requirement when another applicable OSHA standard requires one, including, for example, the OSHA standard for:
A list of all major fire hazards, proper handling and storage procedures for hazardous materials, potential ignition sources and their control, and the type of fire protection equipment necessary to control each major hazard (29 C.F.R. § 1910.39(c)(1)).
Procedures to control accumulations of flammable and combustible waste materials (29 C.F.R. § 1910.39(c)(2)).
Procedures for regular maintenance of safeguards installed on heat-producing equipment to prevent the accidental ignition of combustible materials (29 C.F.R. § 1910.39(c)(3)).
The name or job title of employees responsible for maintaining equipment to prevent or control sources of ignition or fires (29 C.F.R. § 1910.39(c)(4)).
The name or job title of employees responsible for the control of fuel source hazards (29 C.F.R. § 1910.39(c)(5)).
Employers must also:
Inform employees who are assigned a job in the FPP of the fire hazards to which they are exposed.
Review with each employee those parts of the fire prevention plan necessary for employees to protect themselves.
This OSHA standard covers portable fire extinguishers at the workplace. Employees who use portable fire extinguishers can often put out small fires or control a fire until additional help arrives. Employers must decide whether employees are authorized to use fire extinguishers or must immediately evacuate. (29 C.F.R. § 1910.157.)
An employer is not required to comply with OSHA's portable fire extinguishers standard if:
The employer has established a written fire safety policy that requires immediate and total evacuation of employees from the workplace when a fire alarm signal sounds and includes a proper EAP and FPP (see Emergency Action Plans and Fire Prevention Plans).
Fire extinguishers are unavailable in the workplace.
Another specific standard does not require the employer to provide portable fire extinguishers.
The employer is exempt from the distribution requirements of OSHA's portable fire extinguishers standard if the employer has a proper EAP (see Emergency Action Plans) that:
Designates certain employees to be the only employees authorized to use the portable fire extinguishers.
Requires all other employees in the fire area to evacuate immediately if a fire alarm sounds.
If fire extinguishers are available for employee use, employers must:
Mount, locate, and identify them so that they are readily accessible to employees without subjecting them to possible injury (29 C.F.R. § 1910.157(c)(1)).
Not use portable fire extinguishers that use carbon tetrachloride or chlorobromomethane extinguishing agents (29 C.F.R. § 1910.157(c)(3)).
Assure that portable fire extinguishers are maintained, fully charged, operating properly, and kept in designated places at all times except during use (29 C.F.R. § 1910.157(c)(4)).
provide specialized training to employees designated to use fire extinguishers as part of the EAP when the employee is first assigned these duties and annually thereafter (29 C.F.R. § 1910.157(g)(3) and (4)).
Conduct inspections, maintenance, and testing of the fire extinguishers (29 C.F.R. § 1910.157(e)).
Ensure that hydrostatic testing of the fire extinguishers is conducted by trained individuals (29 C.F.R. § 1910.157(f)).
If fire extinguishers are provided but are not intended for employee use, and the employer has a proper EAP and an FPP, then the employer must only comply with the inspection, maintenance, and testing and hydrostatic testing requirements listed (29 C.F.R. § 1910.157(a)).
Fixed Extinguishing Systems
This OSHA standard applies to employers who have a fixed extinguishing system installed to meet a specific OSHA standard, except for automatic sprinkler systems (29 C.F.R. §§ 1910.159 and 1910.160).
Fire Detection Systems
This OSHA standard applies to all automatic fire detection systems installed to meet the requirements of a particular OSHA standard and discusses the installation, maintenance, and testing of these devices and equipment (29 C.F.R. § 1910.164).
Employee Alarm Systems
The purpose of OSHA's employee alarm system standard is to reduce the severity of workplace accidents and injuries by ensuring that alarm systems operate properly and that procedures are in place to alert employees to workplace emergencies (29 C.F.R. § 1910.165). This standard applies:
To all employers that use an alarm system to satisfy any OSHA standard that requires employers to provide an early warning for emergency action or reaction time for employees to safely escape the workplace, the immediate work area, or both (29 C.F.R. § 1910.165).
If any OSHA standard specifically states that the employer must install an employee alarm system, including:
An employee alarm system can be any piece of equipment or device designed to inform employees that an emergency exists or to signal the presence of a hazard requiring urgent attention, including visual and audible alarms. An effective alarm system works in conjunction with an EAP and informs employees, including disabled workers, that an emergency exists and how they should respond. This plan should include:
The preferred means of reporting emergencies, such as manual pull box alarms, public address systems, radio, or telephones.
Posting emergency telephone numbers near telephones, employee notice boards, and other conspicuous locations when telephones serve as a means of reporting emergencies.
Procedures for sounding emergency alarms in the workplace.
A current list of key personnel to notify in an emergency during off-duty hours.
Use distinct signals for purposes of alerting the fire department and other purposes (29 C.F.R. § 1910.38(d)).
Provide warning for necessary emergency action as called for in the EAP or for reaction time for safe escape of employees from the workplace or the immediate work area, or both (29 C.F.R. § 1910.165(b)(1)).
Have alarms that:
can be heard, seen, or otherwise perceived by everyone in the workplace (29 C.F.R. § 1910.165(b)(2)); and
are distinctive and recognized by all employees as a signal to evacuate the work area or perform actions identified in your plan (29 C.F.R. § 1910.165(b)(3)).
Make available an emergency communications system, like a public address system, portable radio unit, or other means to notify employees of the emergency and to contact local law enforcement, the fire department, and others (29 C.F.R. § 1910.165(b)(4)).
Use only approved devices, components, combinations of devices, or systems (29 C.F.R. § 1910.165(c)(1)).
Restore all alarm systems to normal operating condition as soon as possible after each test or alarm and have spare alarm devices and components readily available (29 C.F.R. § 1910.165(c)(2)).
Ensure all employee alarm systems are in proper working condition, except when undergoing repairs or maintenance (29 C.F.R. § 1910.165(d)(1)).
Test the reliability and adequacy of non-supervised employee alarm systems every two months (29 C.F.R. § 1910.165(d)(2)).
Maintain or replace power supplies as often as necessary to ensure a fully operational condition and provide back-up alarms when systems are out of service (29 C.F.R. § 1910.165(d)(3)).
Ensure that any employee alarm circuitry installed after January 1, 1981 is supervised and provides positive notification to assigned personnel whenever a deficiency exists in the system (29 C.F.R. § 1910.165(d)(4)).
Have properly trained individuals handle the servicing, maintenance, and testing of employee alarms (29 C.F.R. § 1910.165(d)(5)).
Ensure manually activated alarms are unobstructed, conspicuous, and readily accessible (29 C.F.R. § 1910.165(e)).
Design and Construction of Exit Routes
This OSHA standard sets out requirements for the proper design and construction of exit routes. The requirements cover construction materials, opening dimensions, accessibility conditions, capacity, and special considerations for exit routes that are outside of a building. (29 C.F.R. § 1910.36.)
Maintenance, Safeguards, and Operational Features for Exit Routes
This OSHA standard establishes requirements for exit route lighting, marking, and non-flammable material maintenance to prepare the workplace for a successful emergency evacuation (29 C.F.R. § 1910.37).
OSHA provides guidance for employers on preparation and training for emergencies. This includes general preparedness and information relating to specific emergencies, such as:
Natural disasters and weather-related emergencies, including hurricanes and wildfires.
Diseases and toxins.
Oil and chemical, biological, radiological, nuclear, and explosive incidents.
The Department of Homeland Security (DHS) published the fourth edition of the National Response Framework (NRF) in October 2019. The NRF includes guidelines for implementing worker safety during national emergencies, including acts of terrorism and cyberattacks.
The NRF emphasizes that employers have a fundamental responsibility to protect employees in the workplace. Although the NRF encourages all private sector employers to take necessary precautions and to stay in business during a disaster or reopen for business as soon as possible, private employers are not required to prepare a response plan for their employees. Even though employers are not required to follow the NRF, it is useful guidance for emergency planning.
The DHS also provides resources for businesses to assist with emergency planning, including:
Ready Business Toolkits for hurricanes, earthquakes, inland flooding, severe wind and tornadoes, and power outages.
Resources for developing, planning, and implementing an all hazards preparedness plan, including:
emergency response;
crisis communications;
business continuity;
information technology (IT) disaster recovery; and
The first step in emergency planning is to form a planning team. When forming the team, employers should:
Consider the size of the employer, as larger companies require larger planning teams so that all departments can be represented.
Establish a diverse team, obtaining input from all functional areas, including:
upper management;
line management;
hourly employees;
human resources;
engineering and maintenance;
safety;
health and environmental affairs;
security;
community relations;
sales and marketing;
legal; and
finance and purchasing.
Designate active members and advisory members where:
active members help implement the plan and likely have more contact with employees; and
advisory members (who may not be employed by the employer) ensure compliance with certain laws or OSH Act requirements.
Establish authority and demonstrate management's commitment to effective emergency planning by designating the chief executive officer or plant manager, where this position exists, to lead the group.
Issue a mission statement that defines the plan's purpose and the planning team's authority and structure.
Establish a budget that takes into account research, printing, training, consulting services, and other necessary expenses during the development process.
Analyzing Capabilities and Possible Hazards or Emergencies
Once the planning team is formed, the team should review the employer's current emergency response capabilities, including an assessment of potential emergencies.
Conducting a Vulnerability Analysis
The planning team should assess how the employer functions by identifying critical products, services, and operations. For example, the employer should consider:
What equipment is needed to produce its products.
Its relationship with and dependency on suppliers.
Its lifeline services, such as power, water, sewer, gas, telecommunications, and transportation.
The planning team should then conduct a vulnerability analysis to determine planning and resource priorities. The planning team should compile a hazard vulnerability analysis chart listing the potential emergencies based on historical information, geography, technology, human error, emergencies resulting from design or construction of the facility, and possible impacts on regulatory requirements that could result from an emergency. Each potential emergency should be assigned a total rating based on the sum of the individual ratings for each of the following areas (on a scale of one to five, with one as the lowest probability and five as the highest):
The probability that the emergency will occur.
The potential human impact of the emergency, including the possibility of death or injury.
The potential impact of the emergency on the physical workplace, including the cost to:
repair or replace the property; and
set up a temporary replacement, if applicable.
The potential business impact of the emergency, including:
loss of market share;
losses due to business interruption and a displaced workforce;
company violations in contractual agreements;
imposition of fines;
legal costs; and
losses due to interruption of product distribution.
Identifying Internal Resources for Handling Emergencies
The planning team should review the employer's internal plans and policies for handling various potential emergencies. When doing so, they should identify internal resources and capabilities. These include:
Vital backup systems for payroll communications.
Production capabilities.
Customer services.
Shipping and receiving.
Information systems support.
Emergency power and recovery support.
Identifying External Resources for Handling Emergencies
The planning team should also meet with groups outside of the employer to ask about available resources in an emergency. Relevant groups may include:
Government agencies.
Community organizations.
Utilities, such as electric companies.
Insurance carriers.
Hospitals.
Local emergency management offices.
Identifying Codes and Regulations
To develop a thorough EAP, the planning team should identify any applicable codes and regulations, such as OSHA standards, environmental regulations, fire codes, transportation regulations, zoning regulations, and corporate policies, to ensure compliance with each of these.
Developing an Emergency Action Plan
The planning team should also develop an EAP. At a minimum, it must contain:
Procedures for reporting a fire or other emergency, including:
Although not required by OSHA, employers may also consider including in their EAPs:
A description of the alarm system used to notify employees (including disabled employees) to evacuate or take other actions (see Employee Alarm Systems).
The site of an alternative communications center in a fire or explosion.
A secure on-site or off-site location to store originals or duplicate copies of accounting records, legal documents, employees' emergency contact lists, and other important records.
A typical EAP includes the following sections:
An executive summary that sets out:
the purpose of the plan;
the emergency management policy, which describes how an employer responds to an emergency;
the authority and responsibilities of key personnel, both internally and externally, including whether the employer can use key personnel in locations that were not impacted by the disaster;
potential emergencies; and
the location where response operations will be managed.
An emergency management section that describes:
escape routes from the facility;
procedures for employees who perform or shut down critical operations before an evacuation;
procedures to account for all employees;
procedures for reporting emergencies;
a schedule for training employees on emergency procedures;
plans for the protection of property;
community outreach, including coordinating with outside organizations, such as public service and support personnel; and
plans for recovery and restoration.
Emergency response procedures that cover:
the procedures for assessing a situation to establish the extent of the emergency;
ways to protect employees, customers, visitors, equipment, vital records, and other assets; and
business continuity plans, such as communicating with employees and logistics following an emergency.
The final step in emergency planning involves implementing the EAP into employer operations.
The employer must distribute the EAP throughout the workplace by, for example, publishing it in corporate newsletters, in employee manuals, or on the employer's portal page, or sending it through email or mailings (29 C.F.R. § 1910.38(b)). The EAP should be evaluated annually, modified if necessary, and redistributed to all employees.
The employer must also train relevant employees on the EAP. The person or team responsible for developing the training program should determine:
Who to train.
Who should conduct the training.
What training activities to use.
When and where each session takes place.
How to evaluate and document the sessions.
Employers should consider the following training activities:
Orientation and education sessions, which are regularly scheduled discussion sessions to provide information, answer questions, and identify needs and concerns.
Tabletop exercises that allow members of the emergency management group to meet in a conference room setting to discuss their responsibilities and how they would react to emergency scenarios.
Walk-through drills that enable members of the emergency management group and response teams to actually perform their emergency functions.
Functional drills that specifically test functions such as medical response, emergency notifications warning, and communications procedures and equipment.
Evacuation drills that allow employees to walk the evacuation route and note any potential hazards.
Full-scale exercises that simulate a real-life emergency situation.
The training instructors should conduct reviews and request feedback after each training activity. Additionally, the employer should provide general training for all employees. This general training may address:
Individual roles and responsibilities.
Information about threats, hazards, and protective actions.
Notification, warning, and communications procedures.
Means for locating family members in an emergency.
Emergency response procedures.
Evacuation, shelter, and accountability procedures.
Employers must also prepare for other issues that may arise during and after an emergency or disaster. For example, Hurricanes Katrina, Rita, and Sandy disrupted the lives of an unprecedented number of Gulf Coast and Northeastern residents. Thousands of workers were displaced not just from their homes, but from their jobs as well. Hurricanes Harvey, Irma, and Dorian are more recent examples of the disastrous impact of these storms. As a result, private employers have faced obstacles both legally in complying with various laws and logistically in locating a displaced workforce and accommodating their needs.
When updating plans for dealing with the consequences of a disaster, employers and their counsel should address the following potential legal issues:
Discrimination against employees who comply with emergency evacuation orders.
Preventing Discrimination Against Employees Who Evacuate and Volunteer Emergency Responders
Employers must be mindful of how they react during an emergency situation and draft EAPs accordingly. Namely, some states have instituted additional protections for employees who comply with a mandatory emergency evacuation order. As a result of these protections, discharging or otherwise taking an adverse employment action against an employee for obeying an evacuation order may be unlawful.
For example, in Texas, an employer may not discharge or otherwise discriminate against an employee who leaves the employee's place of employment to participate in a general public evacuation under an emergency evacuation order (Tex. Lab. Code § 22.002). An employer who violates this law is liable for any loss of wages and employer-provided benefits incurred by the employee as a result of the violation (Tex. Lab. Code § 22.003(a)). Further, a wrongfully discharged employee is entitled to reinstatement in the same or an equivalent position (Tex. Lab. Code § 22.003(b)). This law, however, does not apply to:
Emergency services personnel, provided that their employers offer adequate emergency shelter.
Employees who are necessary to provide for the safety and wellbeing of the general public, including persons necessary for the restoration of vital services.
In North Dakota, an employer may not terminate or demote an employee who is a volunteer emergency responder or in any other manner discriminate against that employee for being absent or tardy due to serving as a volunteer emergency responder (N.D. Cent. Code § 37-29-03). Similarly, in Delaware, it is unlawful to discriminate in the hiring or discharge of individuals because of their memberships in volunteer emergency responder organizations (Del. Code Ann. tit. 19, § 719A).
Therefore, before counting an absence against an employee or enforcing a job abandonment policy in times of crisis or natural disaster, the employer should reach out to the employee in an effort to ensure that the employee has truly abandoned the employee's job. An employer's EAP (and policies regarding attendance and absenteeism) should provide a method for employees to report that they have evacuated under an emergency evacuation order.
Further, an employer's policy should make clear that the protections for evacuated employees only exist when a formal evacuation order has been issued. In Texas, for example, this means that an official statement has been issued by the governing body of the state or a political subdivision of the state to recommend the evacuation of all or part of the population in an area stricken or threatened with a disaster.
USERRA protects employees from discrimination in employment based on military service and requires employers to provide reinstatement for those on military leave (38 U.S.C. § 4301). Employers may need to provide benefits during the leave period, depending on the type of benefit and the employer's practices regarding employees on furlough or non-USERRA leaves of absence.
USERRA has been extended to cover groups who provide intermittent disaster response included in the National Disaster Medical System, such as the Disaster Medical Assistance Team, the Disaster Mortuary Operational Response Team, and others. Employers must provide the appropriate USERRA benefits not only to those in the military, but also to these key groups covered under USERRA (see Practice Note, Military Leave Law).
Compliance with the FMLA
Employees and their family members who sustain serious injuries or other health problems as a result of hurricanes and other disasters may qualify for leave under the FMLA (29 U.S.C. § 2612).
Employees may have trouble getting a medical certification concerning their injuries due to the disruption caused by the disaster. Although the FMLA allows an employer to deny leave if the certification is not provided within the time requested by the employer, that time may be extended if it is not practicable under the particular circumstances to provide the certification despite the employee's diligent, good faith efforts. Consequently, employees who cannot timely obtain a certification due to a disaster may be entitled to an extension. (29 C.F.R. § 825.305(b).)
If an employee requests leave under the FMLA after a natural disaster, employers should:
Gather as much information as possible from the employee to determine whether the employee is entitled to leave under the FMLA.
Ask the employee to provide the requisite FMLA paperwork to support FMLA leave.
When developing, implementing, and maintaining a workplace emergency plan, employers should ensure that all phases of emergency management consider the safety and needs of individuals with disabilities.
Ask employees whether they require assistance in an evacuation because of a disability or medical condition.
Identify individuals who may require assistance in one of three ways:
after making a job offer, but before employment begins, ask all individuals whether they may need assistance during an emergency;
periodically survey all of its current employees to determine whether they require assistance in an emergency, making it clear that self-identification is voluntary; and
ask employees with known disabilities if they require assistance in an emergency.
Specifically ask what type of assistance is needed. An employer should not assume that everyone with an obvious disability needs assistance during an evacuation. For example, many visually impaired individuals may prefer to walk down stairs unassisted.
Share information about the type of assistance an individual needs in an evacuation. Although the ADA has provisions requiring employers to keep medical information about applicants and employees confidential, there is an emergency exception that allows an employer to share assistance information with:
medical professionals;
emergency coordinators;
floor captains;
colleagues who have volunteered to offer assistance;
building security officers who need to confirm that everyone has been evacuated; and
other non-medical personnel who are responsible for ensuring safe evacuation.
Regarding employee benefits provided by an employer, employers should contact benefit vendors to determine how coverage is maintained during the period when workers are out of work. Employers affected by a disaster may struggle to make pension contributions. However, in the wake of a natural disaster, the government is likely to respond to give employers some flexibility. This may include, for example:
Determine which benefits are most important to maintain during a disaster, such as Employee Retirement Income Security Act (ERISA)-covered benefits of life, health, and disability coverage.
An employer must prepare for the possibility that in the aftermath of a disaster or emergency, it may have to lay off many employees. The federal WARN Act requires employers to provide notice 60 days before covered plant closings and mass layoffs (29 U.S.C. § 2102).
The purpose of the WARN Act is to provide adequate notice to workers who face an imminent employment loss so that they have some transition time to adjust to the prospective loss of employment, seek alternative employment, and, if necessary, enter a retraining program that allows them to successfully compete in a highly competitive market. Employers must provide this notice to:
Affected workers or their representatives (for example, a labor union).
The state dislocated worker unit.
The appropriate unit of local government.
One important exception to the 60-day notice requirement is if the plant closing or mass layoff is due to any form of natural disaster (29 U.S.C. § 2102(b)(2)(B)). As long as the closing or layoffs are a direct result of the natural disaster, an employer need only provide as much notice as is practicable and include the reasons for reducing the notification period (29 U.S.C. § 2102(b)(3)). The statute details the types of notice required (29 U.S.C. § 2102).
Employers that do not strictly comply with the WARN Act requirements face high penalties. For example, each employee who is adversely affected by an employer's failure to comply with the WARN Act may bring a civil action in federal court against the offending employer. If successful, each affected employee is entitled to receive back pay for each day the employer is in violation. Furthermore, if an employer fails to provide proper notification to the correct state and local government officials as required, the employer may also face a civil penalty of up to $500 for each day of the violation, up to a maximum of 60 days. (29 U.S.C. § 2104.)
During emergency planning, an employer should prepare to comply with any WARN Act requirements by:
Determining whether it has over 100 employees and must comply with WARN Act requirements.
Designating a department or individual (for example, the legal department or a human resources representative) to prepare the WARN Act notice before a natural disaster occurs.
Locating contact information for the state dislocated worker unit and other units of local government that require notice.
Consulting with legal counsel to ensure compliance with the WARN Act notice requirements.
Employers must also be aware of WARN Act requirements of individual states to ensure compliance and avoid penalties (see Mini-WARN Acts: State Q&A Tool).
Strategies for Continuing Business Operations
Implementing a Business Continuity Plan
After a disaster, how an employer responds is vital to the business's survival. Employers must create a realistic strategy for restarting or continuing business operations to meet financial expectations and obligations and to protect employee morale. Employers should have in place a strong EAP, coupled with a business continuity plan (BCP). DHS provides resources with business continuity resources (see DHS: Ready Business: Business Continuity Plan and Business Continuity Planning Suite).
A BCP supplements and works in conjunction with an EAP. While an EAP focuses primarily on the safety of employees and proper response to an emergency, the BCP focuses on the survival and health of the business entity through an emergency situation.
Preemptively creating an EAP and a BCP helps an employer protect its workforce and operations after a disaster. To provide for a smooth transition and continued operations following a disaster, employers should:
Assess how the employer functions, including:
determining which staff, materials, procedures, and equipment are absolutely necessary to keep their business operating;
reviewing their business process flowchart, if one exists, to understand how the business operates and which parts of the business could be impacted by an emergency;
identifying operations critical to survival and recovery, including emergency payroll, expedited financial decision-making, and accounting systems to track and document costs in a disaster; and
setting procedures for succession of management (including at least one person who is not located at the employer's headquarters, if applicable).
Identify the suppliers, shippers, resources, and other businesses the employer must interact with on a daily basis. Additionally, employers should:
develop professional relationships with more than one company to use if their primary contractor cannot service their business needs (as a disaster that shuts down a key supplier can be devastating to a business); and
create a contact list for existing vital business contractors and others to use in an emergency. Keep this list with other important documents on file, in the emergency supply kit, and at an off-site location.
Create a continuity of operations plan and review it annually. When developing the plan, employers should:
plan what to do if a building, plant, or store is inaccessible;
consider whether the business can function from a different location, remotely, or through the homes of employees;
develop relationships with other companies to use their facilities if a disaster makes the employer's location unusable; and
plan for payroll continuity.
Define crisis management procedures and individual responsibilities in advance. At a minimum, employers should:
make sure those involved know what they are supposed to do; and
train others for back-up purposes.
Plan for communication with employees and relevant third parties. Two-way communication is vital before, during, and after a disaster. Employers should consider:
including emergency preparedness information in newsletters, on the company intranet, in periodic employee emails, and through other internal communications tools;
setting up a telephone calling tree, a page on the company website, an email alert, or a call-in voice recording to communicate with employees in an emergency;
designating an out-of-town voice message service where employees can leave an "I'm okay" message during or following a catastrophic disaster;
providing employees with quick, wallet-sized "cheat sheets" with important contact information, including the names, telephone numbers, and email addresses of key personnel;
maintaining open communications where coworkers can bring questions and concerns to company leadership;
meeting with other businesses in the employer's building or industrial complex to share best practices and form relationships that can be beneficial in the event of an emergency;
meeting with first responders, emergency managers, community organizations, and utility providers;
planning with suppliers, shippers, and other third parties with which the employer conducts regular business; and
sharing the employer's plans and encouraging other businesses to set in motion their own business continuity planning.