The Hawaiian island of Maui has been ravaged by unprecedented and quickly moving wildfires, which have taken a particular toll on hospitality employers. As the U.S. enters peak hurricane season, the Hawaiian and Canadian wildfires and the flooding caused by the recent California tropical storm serve as a reminder for employers to consider implementation or revision of their disaster plans, among other legal and practical considerations.
Quick Hits
- In the face of natural disasters, employers may want to have a comprehensive disaster response plan in place or update that plan in light of the increasing danger of wildfires.
- Under some circumstances, employers have responsibilities for employee safety, especially when natural disasters affect the workplace.
The record-breaking wildfires have reportedly killed at least 110 people and caused billions of dollars in damage as the blaze destroyed homes and businesses, particularly in the town of Lahaina, Hawaii. Residents and tourists have been forced to evacuate parts of the island, and residents and business owners are struggling to assess the damage to their homes and businesses.
As is often seen when hurricanes hit popular tourist destinations, hotels may become places of refuge for stranded residents or tourists, causing even greater demand for hotel employees to be at work. Conversely, hotels may sustain significant damage to warrant prompt evacuation, while also displacing employees from the ability to work.
Considerations for Creating a Disaster Plan
In the face of these contingencies, employers may want to consider creating a plan for dealing with disasters that will provide for the safety of their employees and their continued operations. Proper planning in advance of a disaster can help minimize or even prevent damage to a company’s operations, reputation, and future.
A comprehensive disaster plan will take into account the company’s entire community, including employees, customers and guests, and vendors. When formulating a disaster plan, employers may first want to conduct a risk assessment; evaluate how the company functions both externally and internally; and determine which staff, materials, procedures, and equipment are absolutely necessary to keep operating. There are many potential components of a thorough disaster plan. A few of them are below.
Disaster Team
Many employers organize a team of employees focused on creating and implementing a disaster plan. These teams may consist of individuals from all levels within the company and various departments so the disaster plan fully encompasses all aspects of the company’s daily business functions.
Specifics of the safety plan
The plan may include a description of how the company will protect its employees, assets, and reputation in the event of different kinds of disasters. Further, a disaster plan may identify critical employees who can be educated as to what is expected of them during a disaster.
Communication Strategy
Another common component of disaster plans is a disaster communication strategy that will serve to notify employees and relevant customers and clients as to the step-by-step developments toward keeping the business in operation. Specifically, a disaster plan may include an emergency plan for employees that includes communication before, during, and after a disaster. This may consist of setting up a telephone calling tree (assign employees to contact teams, which would communicate amongst each other to disseminate information in response to the disaster), a password-protected page on the company website, an email or text message alert, or a call-in voice recording to communicate with employees in an emergency. In this regard, employers may benefit from compiling a list of complete contact information for their employees and corporate officers that would be kept by the key players of the emergency response team. This list should include local and federal emergency telephone numbers.
Useful Equipment
Satellite phones may be a practical way to communicate with critical personnel when communication systems experience disruption. Employers may further consider having emergency supplies secured and maintained on location should a disaster strike suddenly or should conditions worsen throughout a disaster.
Evacuation plans
A disaster plan may also account for the consideration of whether to stay put or to evacuate depending on the type of disaster. An evacuation plan may be developed with an eye toward knowing who is in the building or facility at any time, including guests, customers, and visitors. Employers may want to decide in advance which individuals have the authority to order an evacuation and identify who will shut down critical operations and lock doors.
Training
Finally, repeated training and participation in drills and exercises may help to ensure that a disaster plan is going to be effective. Putting the plan to the test may ensure that all individuals understand their responsibilities and that areas of the plan requiring modification are highlighted.
Hospitality Employers
Employers in the hospitality industry have some additional considerations. Hotels are responsible not only for the safety of their employees but of their guests. An effective communication system for hospitality employers may further include means for notifying guests of the need to evacuate their rooms, gather in a central, secure location, such as a banquet room, or to evacuate the building altogether. Critical personnel may be assigned to ensure guests have vacated their rooms and/or the facility when ordered to do so.
The responsibility for guests also creates a need to have an even greater amount of emergency supplies on hand. Moreover, in some instances, hotels may become a safe refuge for residents seeking shelter. Plans may need to be put in place for accounting for the sudden influx of new guests.
Legal Considerations
WARN Act
The federal Worker Adjustment and Retraining Notification (WARN) Act generally requires employers to provide workers sixty days advanced notice of a plant closing or covered mass layoff. However, the WARN Act contains an exception to that notice requirement when the plant closing or mass layoff is due to a natural disaster, such as a wildfire. Instead, employers are required to provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” This means that once employers are in a position to evaluate the impact of the disaster, they may want to consider notifying “affected employees.”
Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) requires that employers continue to pay workers for all hours worked, even during a disaster. If time records are lost as a result of the disaster, employers can pay employees based on the number of hours they typically work or have employees report their hours to the best of their memory. However, to the extent that workers do not work as a result of the disaster, the FLSA does not require employers to pay non-exempt employees, though employers must pay exempt, salaried employees if they work any part of the workweek.
The Occupational Safety and Health Act
Occupational Safety and Health Administration (OSHA) standards and the Occupational Safety and Health (OSH) Act require that employers protect their employees against “recognized hazards” to safety or health that may cause serious injury or death. Employees have a right to refuse to work if they have a good-faith belief that they are exposed to imminent danger. This consideration is particularly important in the case of natural disasters like a wildfire, which could create hazardous working conditions, sometimes unexpectedly.
National Labor Relations Act
The National Labor Relations Act (NLRA) protects employees engaging in “concerted protected activity,” which may include refusal to work due to working conditions that may be impacted by a natural disaster. Further, employers with employees represented by a union must comply with the requirements of applicable collective bargaining agreements before taking action.
Ogletree Deakins will continue to monitor developments and will provide updates on the California, Employment Law, Hawaii, Hospitality, Wage and Hour, and Workplace Safety and Health blogs.
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