Negligent Failure to Plan: The Next Liability Frontier?

Employers have a legal duty to exercise reasonable care in providing a safe workplace, but will that same duty be extended to emergency planning and response?

It's a normal Tuesday, when suddenly a huge blast rocks your workplace. You are jolted out of your seat. After an eerie silence, you hear screams and commotion. People around you start running. Unthinkably, your facility has been the target of a bombing.

Responding as best you can to the panic you see unfolding, you direct employees outside to what seems a safe corner of the parking lot, near the dumpster. Ten minutes later, a second explosion goes off in the dumpster, resulting in several more casualties.

Your immediate concern will be taking care of the injured, putting out the fires, securing the site and receiving the frightened family members. But in the aftermath of this tragedy, two important questions will emerge. They will be directed toward the management and board of directors of your organization. Employees, the media and the public will inevitably get around to asking:

  • "Did you take reasonable precautions to prevent a critical incident such as this from occurring, which could take a terrible toll on your work force?"
  • "Were you prepared to respond with proper protective and palliative actions for your people following a critical incident like this?"

The answers you give could have enormous consequences for your company, its bottom line and its future, because of an emerging concept of liability: negligent failure to plan.

What are Your Responsibilities?

Employers can be considered negligent if they do not take reasonable steps to eliminate or diminish known or reasonably foreseeable risks that could cause harm. Following 9/11, the range of known hazards is widely perceived to have broadened. Repeated acts of terrorism on American soil are almost certain to occur in the future; this is not, alas, unthinkable any longer. Corporations can now reasonably be expected to prepare for these newly foreseeable risks.

But whether it comes following an incident of terrorism or from some other kind of tragedy that befalls their organization, employers would be wise to anticipate heightened scrutiny of their preparedness and response planning as well as increased eagerness to hold them accountable before the law.

Though there is as yet no reported law on the subject per se, negligent failure to plan is likely to be tested as a new legal concept. Think of it as the common law of simple negligence applied under a newly critical lens. The essence of a negligence claim is relatively simple, and not legislated except from behind the judge's bench and within the jury box. Its basics are a duty under the law; a breach of that duty, by the failure to exercise the standard of care of a reasonably prudent person in similar circumstances; and damages that are proximately caused by such breach.

The notion that employers have a legal duty to exercise reasonable care in providing a safe workplace is not new. For instance, under the Occupational Safety and Health Act, every covered employer has a general duty to provide a safe workplace, and the U.S. Department of Labor issues regulations and guidelines that essentially define the "standard of care" to be exercised by employers with regard to things like hazardous materials and potentially unsafe workplace practices or conditions.

Crisis prevention and response plans may similarly fall within the realm of this "standard of care." Because crises caused by industrial accidents, workplace violence, terrorism, product tampering or employer negligence are all within the scope of foreseeable risk, to arguably varying degrees, having a plan to minimize the risk of crisis where possible, and to respond to crisis effectively that is, without increasing the risk of additional harm appears to be a natural extension of an employer's general duty under OSHA and similar state laws. This will not go unnoticed by the plaintiffs' bar. Nor are juries and the public likely to reject the idea that an employer should be called to answer for failing to take these sorts of risks seriously and spend the time and money necessary to prepare for them.

Such a plan, at the least, should be designed to minimize the potential for unnecessary harm to employees, both during the eruption of a crisis and in its aftermath. The expectations of judges and juries who may study this question in the future would likely range from what should now be standard emergency response plans at any workplace involving evacuation, emergency medical and law enforcement support, rapid and effective communication of information, continuity of business and so on to providing competent support to employees who may have been impacted mentally or emotionally during or by the crisis. In this regard, although there is no legal duty to provide post-crisis support services to employees, most employers will shoulder this burden willingly. In so doing, such employers will also draw attention to how such services are provided, and scrutiny of whether such services actually helped the affected individuals or aggravated their suffering.

No longer can corporate managers and governors claim the defense of the "unforeseen." Organizations owe a duty of care to protect their employees, their communities and themselves from foreseeable harm. Ideas of what could constitute negligence in these situations are proliferating. Expectations of protection run high among potential victims in the workplace. Largely, they go unspoken, as employees carry on with their jobs and lives. However, if your organization is affected by catastrophe in particular, by an act of terrorism people will be eager to ask the hard questions about what you may have done by way of prevention. Even if it might be generally agreed that it was not humanly possible to prevent the incident, people will expect your management team to be prepared to respond quickly and effectively. In our beginning example, evacuation next to a dumpster that ultimately exploded would be questioned and measured against a reasonable standard of care.

Why Are Some Companies Still Unprepared?

Why are some companies still not adequately prepared for foreseeable crises? There are five common excuses that companies have used unsuccessfully in court before, for example, in situations where they had failed to have a plan to address domestic violence against their employees at work or failed to adopt effective workplace harassment policies. None of these excuses will be an adequate defense, after the fact. Recognizing them in your organization now and breaking through them without delay should be your first step to preparedness.

  • Denying it can happen to you. It is human nature to dissociate, or push negative thoughts and images out of one's mind. In the short term, it is easier and more comfortable to simply assume the "it can't happen here" attitude.
  • Being reticent to make crisis preparedness a priority. Most executives and managers would agree that it is best to be adequately prepared for critical incidents in the workplace. But of course, this is not what their organizations exist to do, and it inevitably siphons resources away from their real missions. Competing priorities can be allowed to ensure that the preparedness process never gets underway.
  • Allowing yourself to remain unaware of risks inherent to your businesses. If you aren't looking for something, you generally won't find it. Unless a foreseeable-risk analysis is conducted throughout your operations, you probably won't be aware of the full range of risks you face, both inside your organization and within the context of external threats.
  • Ignoring warning signs as these emerge. Past internal history is often not critically analyzed; thus near misses and obvious weaknesses are overlooked. Similarly, the risks and disaster experiences of others in one's industry or locale are not recognized as useful sources of knowledge for getting prepared.
  • Relying on weak, untested plans. Often, plans are thrown together shoddily, and a false sense of security is allowed to develop. Unless a crisis plan has been carefully constructed and thoroughly tested, through simulations and emergency exercises, it cannot effectively protect your organization in the moment of a crisis.

Preparedness Takes Constant Attention and Adjustment

Even if your organization puts a well-thought-out plan in place, you could still find yourself being charged with negligent failure to plan. Preparedness is better thought of as a continuous process of staying aware and poised, than as a finite project to be completed and shelved. For one thing, the conditions you face are never static. Neither are your risks, or perceptions of them, whether before or after the fact, on the part of your work force and the public.

Similarly, the strategies and techniques of preparing for and responding to danger are constantly evolving. A case in point is the widely accepted practice of post-trauma debriefing for distressed employees.

It has long been standard procedure, following a crisis incident, to urge affected employees to undergo a group debriefing process to discuss their reactions to the incident. This has served as a useful tool in many ways and is generally well received by employees who participate. It has offered, perhaps to the vast majority of those who have used it, a chance to unravel and relieve the severe emotional consequences that can come of witnessing a tragic event.

Now, however, disturbing research has increasingly emerged that seems to indicate that for some affected individuals, undergoing group debriefing in the immediate aftermath of a crisis may actually do more harm than good, making significantly more likely an eventual diagnosis of Post-traumatic Stress Disorder. In other words, this technique which many employers, EAPs and crisis consultants have accepted as beneficial and have implemented both for the good of their employees and to protect against potential charges of not responding adequately or humanely may come to be used as the basis of lawsuits charging negligence for not staying abreast of new "evidence-based" strategies for early crisis intervention.

As a result, there is controversy at the moment among researchers in the field of psychology and well-meaning but ill-advised practitioners of debriefing. Obviously, it is incumbent upon both corporate managers and counseling providers to stay abreast of the ongoing research into, and dialogue about, best-practices standards for addressing psychological injuries.

Luck: Not an Adequate Strategy

Employees and the public expect that corporate governance and executives are adequately addressing crisis prevention and post-incident response. Crisis preparedness requires a management system that has an effective champion, sufficient managerial support and talent, adequate budgeting, quantifiable objectives, periodic testing and a monitoring system to assure that it is working.

Studies, such as "The Impact of Catastrophes on Shareholder Value" by Rory F. Knight & Deborah J. Pretty at Templeton College (Oxford University), have clearly demonstrated the positive financial effects of preparedness that leads to recovery vs. those organizations that did not recover adequately from major crises. Surveys following incidents ranging from Hurricane Andrew to the Oklahoma City bombing have shown significantly increased morale following exemplary post-crisis support for employees by management. Business disruption can be minimized. Reputation can be propelled. In other words, the core assets of your organization can be protected and even enhanced through purposeful attention to crisis preparedness.

The alternative is to face people, financial and reputational consequences that can create significant, possibly permanent, harm to the organization. This is the fodder of future "negligent failure to plan" claims.

Bruce T. Blythe, CEO of Crisis Management International (www.cmiatl.com), and author of Blindsided: A Manager's Guide to Catastrophic Incidents in the Workplace, heads a worldwide network of crisis consultants.

Terri Stivarius is an attorney at Littler Mendelson specializing in employment litigation and human resources counseling. Apart from her litigation practice, Stivarius is an experienced trainer in all areas of employment law for both managers and non-management employees.

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