Facing Potential Terrorism, Entrepreneurs Need to Think About the Unthinkable
A Note From The Editor
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Last year, we saw terrorism grip the globe, including at home. We no longer can engage in the balm of denial and say terrorism is something over there. It is, sadly, everywhere.
Every responsible entrepreneur needs to have a business continuity plan to address not only terrorism but also threats of terrorism. We saw on New Year’s Eve parts of Europe shut down by the threats alone.
In my experience, there are six employment issues often not sufficiently considered. We need to focus on them, not in a moment of a crisis, but rather in relative calm, so here we go.
1. Temporary shutdown
If a temporary shutdown becomes necessary, the question is whether there is any duty to pay. For employee-relations reasons, you may wish to do so for hopefully what will be only a limited period of time.
In terms of the law, if the employee is exempt from overtime, he or she must be paid his or her full salary for any work week in which he or she does any work. This is equally true if he or she works from home, discussed below.
Conversely, non-exempt employees entitled to overtime under the law do not need to be paid when they are not working. Two primary exceptions here are that they may need to be paid even when not working if they are paid by the fluctuating work week -- alternative way to calculate overtime -- or if they are covered by a collective bargaining agreement.
2. Working at home and the Americans With Disabilities Act (ADA)
When we prepare our crisis-management plans, we make lists of who can work at home. And we stretch, because we have no choice.
Months later, unrelated to your crisis management plan, an employee requests to work at home as a reasonable accommodation for a disability. You say “no” based on the factors articulated by the Equal Employment Opportunity Commission. The problem is that you previously said “yes” in your crisis-management plan.
In your crisis-management plan, make clear that designating a job as subject to telecommuting in the event of a crisis does not mean that the employee can perform all of the essential functions remotely. Rather, it means only that, in a crisis, for a limited period of time, the ability of the employee to do some essential functions is better than none.
3. Payment while working at home
An exempt employee must be paid his or her full salary for any day in which he or she does any work. However, an employer generally can substitute paid time off for unworked time.
A non-exempt employee must be paid only for hours worked, except for the possible exceptions noted in the section above on temporary shut downs.
You need to be thoughtful how you capture working time. Remember: short breaks generally 20 minutes or less under federal law, but even more strict requirements may apply under some state laws, must be paid. And, if the employee is “on call” and restricted in what he or she can do, he or she also may need to be paid for the “on call” time.
The legal nuances are complicated. But the business take away is simple: Work with your counsel to develop the compensation guidelines.
For example, you may want to require that employees start and stop at specified times or this could happen: An employee who ordinarily works an eight-hour day works at home from 8 a.m. to 6 p.m. with eight 15-minutes breaks. Because the breaks are short, the employee must be paid 10 hours for the day rather than eight hours.
Finally, even if you have fixed start and stop times, you may need to stagger them. Your server may not be able to support a large percentage of your workforce accessing it remotely.
4. Fear of working
An employer may not shut down and an employee may refuse to work because of fear. Or, the employer may shut down and then reopen with an employee refusing to return to work because of fear. Is the employee’s refusal to work protected? Or, can the employee be fired?
Under various federal laws, an employee generally cannot be fired for refusing to work in an abnormally dangerous work setting. This is based on what a reasonable person would believe (objective standard) and not the individual’s subjective (personal) fears.
So before taking any action against employees who refuse to work, consider guidance from public authorities and whatever other employers in the same geographic area are doing. While not determinative, these factors are helpful.
You also need to consider whether the refusal may be protected concerted activity under the National Labor Relations Act, even if the employees are non-union. In these cases, you cannot discharge but can replace temporarily or permanently. If permanently, the employee is placed on a priority recall list for when positions become available.
In all cases, consider employee relations issues. And those considerations include the feelings of those who are working, even though they rather not.
An employee also may claim, even if working is not abnormally dangerous, that his or her anxiety precludes him or her from working. An anxiety disorder may be a disability under the Americans With Disabilities Act or the comparable state or local law.
Even if an employee is not disabled under the broad definition under the ADA, he or she still may be eligible for leave under the Family and Medical Leave Act (FMLA) which has an even broader definition of a serious health condition than the definition of disability under the ADA.
Under both the ADA and the FMLA, individualized assessments are necessary. When dealing with actual or threatened terrorism, it is hard to imagine these assessments, as important as they are, being triaged to top of the list.
So develop a protocol now that you will follow, such as always requiring a doctor’s note. You also may want to consider, in defined circumstances, the right to have a doctor whom you designate conduct a second opinion, for example, where the employee’s doctor’s note is not from a specialist. There are some risks in per se rules on second opinions, but there may be business risks in not having them.
5. Evacuation of employees with disabilities
We know that there may need to be an immediate evacuation. Some individuals with physical or mental conditions may need help. It would include, but not be limited to, an employee in a wheel chair.
Do not ask employees whether they have a disability that needs accommodation. Instead, at a time of calm, ask employees who would need help in the event of an emergency evacuation. If someone with a known ambulatory disability, such as Parkinson’s, does not respond, it is reasonable to add him or her to the list.
Of course, you also need individuals to provide the help. When you ask for volunteers, make clear that this is not a requirement but only an option.
If the unthinkable happens, you will need matches. You will want back-ups in case a helper is off that day. You can try to communicate the matches at the moment of the crisis. Expect it to fail. Or, you can introduce the team in advance.
I recommend making the match in advance but only with the authorization of the employee who needs the help. In either case, the employee’s choice should be documented.
A related issue is what to do is if there is an active shooter. Does running to safety make you safer or a target? Obtain expert advice on this issue not only to save lives but also to protect yourself in the worst case scenario.
Of course, the advice is of value only if shared in advance. “Here’s a video on what to do in the event of an active shooter.”
Won’t the video make the employees more anxious? To the contrary, in my experience, if the employees know you are focusing on the issue, they are less likely to be as nervous about it.
6. Contingent workforce
In some cases, an employer may need or be able to operate with a contingent workforce in an area remote from the risk. Employers should consider whether this is an option now.
If you want to go this route, find the source of workers now. Waiting for when the crisis happens is like hitting on 17 at a black jack table.
You may consider paying a premium for priority service. Otherwise, the source may be available in name only.
During a terrorist threat or attack, focusing on the nuances of the joint employer issue is not realistic. But, at a minimum, make sure there are documents up front that make clear you are not the employer and train your supervisors that they never should fire a contingent worker -- only ask that he or she be replaced.
Implicit in the above is another recommendation: You want a simulation, at a minimum with your supervisors. If there is no practice, the full potential of the plan will not be realized.
In all cases, if you have a union contract, you must check it. There may be restrictions that need to be accommodated, such as limitations on supervisors performing bargaining unit work.
Hopefully, the union will understand that, if they are not flexible, there may not be a business after the crisis to which their workers can return. You are more likely to get to “yes” if you treat the union as your business partner. If the union is foolishly rigid, then you may need to take the risk of a grievance or unfair labor practice in order to survive.
We pay for health insurance hoping we lose money on the deal. I wish all entrepreneurs the same on your crisis-management plan.
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