Imagine this: Your business lies within a zone that is subject to a mandatory evacuation order from emergency response and law enforcement officials. Imagine that the evacuation order arises from a fire or imminent flooding. What do you do? Shut your business and get out of course. Most evacuation orders are short lived and the hazardous conditions are realized or not within a short period of time. But what happens when the evacuation order persists for a number of days or even weeks? Your plant operations or business remains shut down. You may have compelling business interests that demand attention during an extended evacuation order. You may need to respond to security alarms and alerts, or ensure that the premises are adequately secured. There may be a fear of product spoliation or destruction, and you may face a serious temptation to send a minimal or skeleton crew into the area covered by the evacuation order in order to ensure that those business concerns are addressed.
Lawyers are trained to look at scenarios like this in reverse. The employer sends a skeleton crew in to secure the premises or ensure that essential processes are completed or that products do not spoil. Something bad then happens. The wildfire burns down the surrounding area or the flood arrives and employees are injured. Now what? An employer has a duty under federal and state laws to provide a safe and healthful work environment. Thirty-four states require employers to maintain an illness and injury prevention plan. These plans are, among other things, intended to identify safety hazards before they occur. Sending employees into an area that has been declared hazardous by law enforcement and emergency response personnel is, to say it as dryly as I can, inconsistent with those standards. So you think about it, and your lawyer has told you to not do it, but you call the Sheriff to see if you can get him to permit a small crew to enter the area of the mandatory evacuation order. He or she says no. But gosh, you’re not sure the sheriff is right. There will be plenty of warning if the dam breaches or if the fire breaks out of containment, and you will have plenty of time to respond and the employees should be able to get out. Stop!
The law and almost all states require employers to put employee safety above almost all other issues in the operation of the business. That said, employers are not required to predict the future. They are however required to take reasonable steps to prevent injury. Thus, with proper planning and documentation, the employer may be able to manage the substantial risks that arise when instructing employees to enter a mandatory evacuation zone, a “gosh, I really want you to do this thing but be careful and if things get bad, just get out quick” will likely not, fulfill the employer’s duty to mitigate known hazards in the work environment.
A well-documented explanation of the importance of a limited visit would be the first step in fulfilling the employer’s duty. The next step is to mitigate all known hazards. During a recent evacuation order following a flood threat, one employer went so far as to put a helicopter company on standby for immediate short term evacuation of a small crew brought in to ensure that toxic materials used in the company’s business had been properly contained for the expected duration of the evacuation order. The company created liaison lines with the sheriff and emergency responders to ensure that if a flood was imminent, the helicopter could be dispatched to pre-arranged evacuation points on the employer’s worksite. The employees who were dispatched were thoroughly briefed on the emergency evacuation procedures and given communications and other safety equipment to utilize if the need were to arise.
Takeaway: Worker safety first! Identify and address known hazards, before acting.