During your preparations for the oncoming Hurricane Irma, you may be trying to decide whether to leave some employees in place at your facility or to evacuate the entire workforce. The question may be asked, what does the law require? Like so many other questions during an emergency, the answer likely is: “good judgment.”
There are no specific OSHA regulations requiring for employees to stay or evacuate during a hurricane. OSHA does, however, require that employers provide a safe workplace and working environment for employees. During a hurricane, that may mean evacuating employees from the facility in order to keep the workplace and employees safe. Employers should consider how the specific situation—here, Hurricane Irma—may impact workers sheltering in place at a facility or attempting to evacuate. Here is a link to and information from an OSHA page dealing with hurricanes.
That said, it is good practice to have an emergency action plan in place before an emergency occurs, and your facility may already have one. Some facilities are required to have an emergency action plan in place, see 29 CFR 1910.38. That plan may specify facility operations and operators who should remain in place during an evacuation to, for example, tend to materials or systems that require someone to be present in order to keep them and the surrounding community safe, or to shut down or operate systems that could pose additional risks to emergency responders or the community if left operating and unattended. Such workers may need personal protective equipment during that work. Generally, emergency action plans provide that if a mandatory evacuation is ordered by local authorities, then everyone must evacuate. If there is no mandatory evacuation order, it is up to the facility to determine whether any employees must stay for emergency operations or actions. A good emergency action plan developed in advance may provide useful guidance. Here is a link to an OSHA page that is helpful in discussing these issues.
The liability issues arising from instructions to any workers to remain at the facility are the same as any other instruction to an employee, but the stakes (and potential liability exposure) could be higher. OSHA will likely judge the instruction under its general duty clause, and any specific standards applicable to the specific task being performed (e.g., fall protection, eye protection, etc.). Under the general duty clause, OSHA will ask the question whether providing safe employment and a safe place of employment is consistent with requiring the worker to stay at the facility.
Company liability to its employees will be governed by applicable Workers Compensation law. In the case of an employee being instructed to stay at the facility during a hurricane, there could be a greater chance that an injured employee could avoid the prohibition against suing an employer for injuries, thus allowing her to file a lawsuit under general negligence or other tort theories. Liability issues may be governed by any applicable case law regarding injuries incurred while working at a facility during a hurricane or other natural disaster, resulting in removal of the case from the tort liability exemption under the Workers Compensation law.
For more information, contact Steve O’Day, Pat Hill or Matt Clarke.