Once upon a time, the term “disaster” meant an explosion, crane or building collapse, or other deadly accident. Disasters now include shootings, public unrest, cybercrimes, hacking, and efforts by third parties to cripple a company’s reputation and its dealings with customers, suppliers and regulators. If an event has disastrous effects, then it is a disaster even if there is no loss of life.
PERIODICALLY CONVENE ‘WHAT-IF’ MEETINGS
After paying out hundreds of millions of dollars in claims for forest fires allegedly due to cable and utility lines tangling, or from gas explosions and similar events, many telecommunications providers and utilities periodically gather a diverse group of risk, operations, legal, and HR and PR professionals and brainstorm about known threats. More importantly, they strive to think of new and evolving threats. While most companies probably don’t need a formal Process Hazard Analysis, elements of the process can be helpful.
Deeply involve operations personnel because they may know of risks that even seasoned safety and environmental managers may not think of. Second, rarely do managers willfully ignore safety and regulatory concerns; however, management may have no genuine appreciation of the risks in the workplace and no business plan to address concerns. Well-meaning executives may say, “I’ve got people to handle those issues.” Would these same executives be so blasé about acquisitions or market plans?
DEVELOP A ‘MANAGEMENT OF CHANGE’ MINDSET
In process hazard analysis of PSM and combustible dust issues, employers must consider the effects of introducing new machinery production lines, products and processes. As an example, enclosing a conveyor carrying sugar may provide the final element (enclosure) needed to propagate a dust explosion. Many changes seemingly unrelated to “safety” may contribute to amputations, explosions and electrocutions. And never forget the human element. Lean efforts, if not properly done, may result in shortages in key people or understaffing, and the inevitable hazards.
DON’T LEGALLY SHOOT YOURSELF IN THE FOOT
Any self-critical analysis can later be used by regulators or unscrupulous plaintiff lawyers to argue that the employer “knew of the hazard and did nothing to fix it.” But that’s not a reason to refrain from audits and what-if efforts. Weigh the risks and gains as in any risk management analysis.
- If efforts prevent disasters, isn’t it worth the risk that the company could be accused of having been aware of a hazard?
- Ensure that all hazards are addressed. Fix them or determine why a “fix” is not needed. If a fix requires a long period, document the reasons and develop alternative methods of protection during the interim period. Addressing guarding, lockout programs and combustible dust issues takes time and cannot always be swiftly resolved, no matter how many resources are thrown at the problem.
CONSIDER ‘NEWER’ THREATS IN DEVELOPING A DISASTER RESPONSE PROCEDURE
Catastrophes overwhelm those involved. Supervisors and field workers alike will be stunned and indecisive, and wrongly consumed with guilt. Even worse, the site leadership and trained responders may be absent or themselves incapacitated. In planning, anticipate the worst. Train more than one onsite manager for catastrophe response. Equally important, establish a seamless procedure that the site management can implement with one call. Site management will have to deal with emergency responders and get employees to safety. Don’t expect anything more from them. Corporate must activate:
- Additional site assistance with shut down, protecting employees, dealing with security and with customers or other involved business entities;
- HR personnel to deal with the families of affected workers and with the concerns of other employees (unhurt employees will want to know how long their work is disrupted, what about their financial losses, the available benefits and their own safety);
- Safety, security, environmental or other specialists depending on the nature of the disaster;
- EAP personnel or grief counselors, even for “tough” guys;
- Managers to coordinate with the various insurers;
- Counsel with skills in catastrophe response, depending on the nature of the disaster;
- Counsel with an enterprise understanding of risk, including with customers and contracts, public image, and individual and corporate civil and criminal exposure (insurers will seldom provide this assistance when the event occurs, so coordinate with insurers, but evaluate the risk);
- Counsel with knowledge of properly using privilege and work product protections, and how to manage employees without crossing the protections the National Labor Relations Board (NLRB) now provides employees speaking out about the company, sharing photos, etc.; and
- PR advisors for dealing with media and for the plethora of social media.
Consider the elements of response to a workplace shooting. Hopefully, prior to the shooting, the company took at least a few precautionary steps. Was a basic security assessment done of access to the site or to hazards faced by employees making deliveries or working at customer sites? Maybe employees practiced an evacuation plan, but was anything done differently in drilling for an active shooter event? How will the site be locked down or secured? Have employees received basic training on the response to an active shooter? The most common response is to drop to the ground, which makes the victim an easier target. At least show employees the Department of Homeland Security YouTube video on Run/Hide/Fight.
The event has happened. Is there a procedure for communicating with employees’ panicked family members? Are employees aware of the harm to families of unfettered texting and posting about the event? Is the company prepared to work with police and SWAT team members? Law enforcement responds differently to an active shooter. Generally they no longer wait for back-up, but immediately enter a site in an effort to neutralize the shooter (and make no mistake, that’s their goal). This is another reason to exclude personal handguns from a site. There is a chance that the responding officers will forcefully address anyone with a visible gun.
More so than even most explosions and building collapses, all communication initially breaks down in a shooting, and rumors multiply and create problems. Also, this is a crime scene, so while the priority is to get people out of harm’s way, the next priority is to gather workers and calm them.
UNIQUE LEGAL ISSUES
Consider if the employer failed to meet any legal duty. Who was the shooter: A stranger? Angry customer? Disgruntled employee? Angry spouse? Should management have recognized signs that an employee presented a risk? Had the site experienced previous break-ins and security issues (if the shooting occurred in connection with a crime)? Did the shooting occur while an employee was performing work offsite? Were they working in a known hazardous area? Second-guessing and finger-pointing is inevitable, so immediately begin investigating such concerns. Memories begin fading or changing within 24 hours. Don’t randomly take statements or ask employees just to “write down the facts.” Use counsel.
Anticipating these challenges will reduce risk and permit the company to better take care of its employees.
Howard Mavity is a partner with Fisher & Phillips LLP, one of the nation’s leading labor and employment firms representing employers. He can be reached at (404) 240-4204 or hmavity(at)laborlawyers.com