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Emergency Preparedness: Weather and Natural Disasters

Chances are you’ve seen the movie Twister at least once before. If so, you probably remember the opening scene, where the father rushes his family into their home’s storm cellar as a tornado approaches, with just enough time to save them, but not himself. Even though it’s just a movie, had this been real life, the entire family may have survived had they been more prepared and had a plan in place.

The fact is, we’ve nearly all experienced some form of severe weather. Some have even faced a full-blown natural disaster, such as an earthquake. Knowing what environmental risks your nonprofit is most likely to encounter is the first step toward being prepared in the event of an emergency. And don’t just consider high impact incidents like hurricanes and tsunamis. Did you know that the National Weather Service states that extreme heat kills more people than hurricanes, floods, tornadoes, and lightning combined?

When extreme weather or a natural disaster is imminent, it’s too late to plan. Every organization should have a comprehensive emergency preparedness plan, including a section for weather and natural disasters. Besides the major benefit of providing guidance during an emergency, developing an emergency preparedness plan has many other advantages, and you may discover unrecognized conditions that could aggravate an emergency situation and can work to eliminate them in advance.

If disaster does strike, are you confident in your ability to quickly secure your nonprofits’ clients, employees, volunteers, and facilities? If not, walking through risk scenarios will help determine your readiness. Start by assessing your risk for various natural-disaster scenarios. If you’re in the Eastern U.S, you may need to prepare for hurricanes and severe winter storms. Nonprofits in the Midwest and the South are at risk for tornadoes, and West Coast nonprofits are subject to and should prepare for disasters such as earthquakes, mudslides, and wildfires.

Good emergency planning takes the cooperation of individuals across your organization. Consider building a cross-functional team, clearly defining the roles and responsibilities of each member, and once your team is in place, develop an action plan to define how your organization will respond to likely disasters. Be sure your plan includes emergency supplies, such as: non-perishable food, bottled water, battery-powered radios, first aid supplies, flashlights, batteries, duct tape, plastic sheeting and plastic garbage bags. Planning is necessary in order to avoid risks and potentially even save lives.

Additionally, be sure to know the difference between a weather watch and a weather warning. A weather watch means there is a possibility of an incident. Conditions are right for the weather, but nothing has happened yet. No response is needed other than keeping informed and being prepared. With a weather warning, severe weather has already been seen or is expected. This is serious, and appropriate actions should be taken. Your plan should take advantage of such warnings with, for example, instructions on sand bagging, removal of equipment to needed locations, providing alternate sources of power, light or water, extra equipment, and relocation of personnel with special skills.

Once your plan is in place, training is important. Your staff and volunteers need to clearly understand what to do in the event of an emergency, and be comfortable in carrying out any assigned responsibilities. Be sure to do some drills or live practice so people are prepared to respond in an emergency situation. While it’s impossible to prevent these incidents, preparation can mean the difference between temporary disruption and sustained disaster for your people and your operations.

Here are some additional resources to assist you in developing and enhancing your organization’s emergency preparedness plan:

Handling Terminations of Employment

No termination should ever come as a surprise. This is a common mantra by labor, employment and human resource specialists alike, because it summarizes the topic of employment terminations so well.

Preparing to terminate an employee is no simple matter because the way an employer handles the employment relationship from the start all the way through this final event, can either set the stage for lengthy and costly litigation, or more preferably, end a relationship in an uneventful farewell.

Typically a termination follows conduct that is either so egregious, the employee is foolish not to expect a termination (e.g., theft of company property, assault on a coworker, engaging in sexual harassment), or results from a series of disciplinary measures where the employee was put on notice that continued poor performance or behavioral issues would result in further discipline or termination.

Certain misconduct may result in more immediate and severe consequences. For instance, in the event of workplace violence, sexual harassment, theft/dishonesty, or being under the influence of drugs or alcohol, it may be more appropriate to issue an immediate termination rather than use progressive discipline. Contrast this to intentional reduction in output, insubordination, or consistently late/incomplete work. These types of issues may not warrant immediate termination, but should still be documented as soon as a pattern of poor performance is noticed. Importantly, inaccurately stellar performance evaluations will do more harm than good when it comes time to defend a decision to terminate for “poor performance.”

While it may be true that the doctrine of employment-at-will is the fundamental employment relationship in the United States, meaning that without notice, an employee may quit at any time and for any reason, or an employer may end employment at any time and for any reason not prohibited by law, caution must still be taken when terminating an employee, and employers would be prudent to carefully evaluate their decision for any termination.

Managers and supervisors are often hard-pressed for time, but taking the time to clearly document misconduct or concerns will help demonstrate objectively, the reasons for discipline and/or termination.  Also consider whether policies and procedures have been explained to staff and consistently applied. Did the employer review similar incidents and apply consequences as they would for any other employee who engaged in similar misconduct? Was this employee properly trained and made aware of expectations? Were all employees, without regard to their protected class, treated the same?  If applicable, were they given the proper warnings prior to termination?

Some best practices in preparing for and conducting a termination include:

  • Ensuring credible documentation is in the employee file regarding negative performance/behavior
  • Discussing termination with direct supervisor(s) and HR
  • Being honest with the employee about reasons for termination but keeping the explanation to a minimum
  • Expecting the unexpected. Employees will react in all different ways, be prepared ahead of time for all possible scenarios.
  • Supervising the removal of personal effects
  • Scheduling a termination to minimize disruption in the workplace
  • Communicating the termination privately, but considering a witness, especially in terminations you think will be contentious on any level
  • Allowing the employee the opportunity to respond to any investigative findings or decisions for termination
  • Arranging for timely termination of access (e.g., email, computer logins, key access) to prevent sabotage
  • Communicating other housekeeping items to employees such as the continuation of benefits, when they can collect their belongings, and how you will logistically exit the room once the termination meeting ends
  • Acting swiftly and without hesitation once a decision has been made

Lastly, even those terminations that are well-documented and warranted may not be a welcomed action by employees, and the employer may want to consider severance pay in exchange for a release of claims. If an employee is litigious, a member of a protected class, has recently requested or taken a medical leave of absence (whether for physical or mental illness), filed a complaint regarding the workplace, or has disclosed a disability or need for some accommodation, employers should consider risk of a lawsuit for discrimination or retaliation. Inconsistencies applying rules to any employee will lend to a risky situation for the employer.

The EEOC prohibits consideration of race, religion, sex, national origin, age, disability or genetic information when making decisions to terminate employment.  Other laws also require employers to provide certain notices to employees following termination (e.g., COBRA) and may require that final pay and all reimbursements are made to an employee at the time of termination.

No matter the reason for a termination, employers should remember that the loss of a job could be detrimental to the employee, so it is always best to practice courtesy, compassion, respect and professionalism during the process.

Changes to Independent Contractor Classification in California

While businesses have traditionally subcontracted certain tasks to independent contractors, the on-demand or “gig” economy has seen this practice skyrocket with the business models used by Uber, Lyft, GrubHub, TaskRabbit and many other tech companies. To a limited extent, nonprofits also depend on independent contractors to perform functions where regular staff do not have the expertise, or for temporary or limited projects.

There is little risk when subcontracting is done through a business, such as hiring a temporary worker through a staffing agency where the worker is the employee of that agency. But when a nonprofit is hiring an individual worker to perform tasks that falls within the scope of the nonprofit’s mission, the classification of independent contractor just became much more risky due to the recent California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles.

In its lengthy decision, the Supreme Court analyzed the basic public policy objective of the California Wage Orders, which were adopted to establish minimum wage, overtime, and meal and rest breaks for non-exempt employees. The court noted that these laws ensure responsible employers are not hurt by competitors realizing the potentially substantial economic benefits of substandard employment practices (such as non-compliance with minimum wage, overtime, meal and rest breaks, insurance benefits, etc.), that could result in a “race to the bottom.”

After analyzing the definition of “employee” under the Wage Orders, as well as the existing multi-pronged independent contractor test and legal tests used by other jurisdictions, the Court determined that a simplified “ABC” test should be used to evaluate whether a worker is classified as an independent contractor for purposes of California Wage Orders.

So how does this simplified test work? The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors ONLY IF the hiring business demonstrates that the worker in question satisfies all three of the following conditions:

  • A. – That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  • B. – That the worker performs work that is outside the usual course of the hiring entity’s business; and
  • C. – That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

So if the worker meets conditions A and C, but not B, because they are not working outside the usual course of the hiring employer’s business, then the worker must be classified as an employee.

The most difficult prongs of the test to meet for most workers will be prongs B and C, so nonprofits analyzing worker classification should likely start with their mission statement and purpose. If an employee is working to further that mission, then under condition B, that worker is likely an employee and no further analysis is necessary.

Going on to condition C, by way of example, while a plumber or an IT technician are not likely to fall within the mission of a social services nonprofit, whether they are in an independently established trade, occupation or business will need further examination. A licensed plumber in a separate business clearly is, but an IT technician may or may not be. Condition A, who directs and controls the worker in the performance of their work, will always require a case-by-case evaluation.

Finally, remember that this Supreme Court case involved the definition of “employee” for purposes of the California Wage Orders. Different employment laws have different definitions of “employee,” so it is possible that a worker may properly be classified as an employee with reference to one law but not another. Nevertheless, once a worker is classified as an employee for Wage Order purposes, they likely should be similarly classified for all other compliance purposes.

Nonprofits that have workers classified as independent contractors now or over the past three years (the applicable statute of limitations on wage claims) should re-evaluate that classification under this narrowed definition to assess whether there is potential liability for wages or penalties for the work performed.

Accommodating Mental Health in the Workplace

The Americans with Disabilities Act (ADA), and many state laws, afford protections for employees with disabilities to promote equal employment opportunities, both in the application process and during employment. These protections include prohibiting discrimination and retaliation on the basis of disability, and require that employers provide reasonable accommodations to enable individuals with disabilities to perform essential job functions, providing equal benefits and privileges of employment. Conversations around accommodations typically focus on physical, apparent disabilities, but over time, the need to address mental health has expanded this focus.

Over the past 15 years, the disability discrimination filings with the Equal Employment Opportunity Commission (EEOC) involving mental health conditions have increased significantly. For example, in 2002 there were no complaints logged for post-traumatic stress disorder, but by the end of 2017, 1,177 complaints had been filed. Disability discrimination complaints involving anxiety increased from 649 in 2002, up to 2,196 in the last year alone. It is no wonder why so much attention is being placed on accommodating mental health in the workplace and in protecting applicants and employees from discrimination or retaliation as a result of mental health issues.

Mental health conditions under the law are treated no differently than physical health conditions. Employers therefore are required to engage in the interactive process to accommodate individuals with mental health disabilities just as they would expect to for someone with a physical disability. So, while oftentimes a disability is thought of as something that manifests through physical limitations and is easily identifiable, employers must also consider the unseen conditions that affect mental health in the workplace.

Some examples of mental health issues that employers may need to accommodate include anxiety disorders, panic disorders, bipolar disorder, depression, post-traumatic stress disorder (PTSD), schizophrenia and adjustment disorders. Mental health issues that do not require accommodations include those that manifest as illegal conduct (e.g. illegal drug use, certain sexual disorders and kleptomania).

Because mental illness affects everyone differently, even two individuals suffering from the same diagnosis, it is critical to engage with employees on an individualized basis. There is no one-size-fits-all approach, but rather, it is important to understand specific limitations. Accommodating a mental health condition will require creativity, in addition to regular monitoring to ensure the chosen accommodation is effective.

Common accommodations for mental health disabilities may include altering break schedules or schedules to accommodate therapy appointments, moving an employee to a quiet area, allowing headphones in the office, and/or modifying supervisory approaches (e.g., providing written feedback rather than verbal conversations). Employers are not required to lower production standards, reduce performance expectations, excuse conduct violations (job related and consistent with business necessity), remove essential functions, monitor medication, or employ an accommodation that would result in undue hardship to the organization. Employers need not accommodate the inability to get along with others, violent outbursts or behavioral problems.

Additionally, safety is of paramount concern and employers need not accommodate where there is a significant risk of substantial harm to the employee or others, and where the risk cannot be reduced or eliminated through reasonable accommodations.

When dealing with a mental health disability, employers may obtain reasonable documentation of the disability and need for accommodation, but may not request a diagnosis or more information than is necessary to determine there is a disability and need for accommodation. Employers providing mental health services to clients are cautioned against acting as mental health professionals for their employees.

Overall, employers should follow the same process for accommodating mental health disabilities as they do for physical disabilities. Additional resources are available through the EEOC at www.eeoc.gov.

Emergency Preparedness – Active Shooter

While most of us will never experience an active shooter emergency, the number of incidents is on the rise. Given this fact, and the seriousness of these events when they happen, it’s important to be attentive to both education and prevention.

According to the U.S. Department of Homeland Security, an active shooter is an individual actively engaged in killing or attempting to kill people in a confined and populated area. In most cases, active shooters use firearm(s), and there is no pattern or method to their selection of victims.

There is not one, single profile of an active shooter. Personality traits do not follow any set pattern, vary widely, and are usually too general to be useful. According to the Department of Homeland Security, many active shooters follow a violence pattern that begins with negative situations, moves to intense negative feelings and the idea that violence is the right way, followed by planning the violent incident. Some workplace shooters are trying to right a perceived wrong, such as a conflict on the job or termination, and may have a specific target. Many others have no specific target, but may have an ideological goal. Perpetrators are relatives in 40% of female workplace homicides, while only 2% of perpetrators against males were relatives.

Active shooter incidents are often unpredictable and evolve quickly. Recognizing potential threats and reacting as quickly as possible cannot be emphasized enough. Many survivors of active shooter incidents have said that they heard noises, but weren’t sure they were gunshots. Every second counts. An active shooter situation will put you under extreme stress, so much so that your ability to think straight and make good decisions may be impaired. It is important that you have trained, practiced, and mentally rehearsed what you will do in this type of emergency, so you can react without hesitation.

The City of Houston Mayor’s Office of Public Safety, with funding from the U.S. Department of Homeland Security, produced the Run, Hide, Fight video. This is an excellent free resource for training your employees and volunteers and has quickly gained traction as a national standard for active shooter protocol.

While the majority of all incidents from 2000-2013 occurred in an environment related to commerce, you should be sure that active shooter training is part of your workplace violence program. An effective response plan should include procedures to respond to mass casualty threats, such as active shooters, by developing evacuation or sheltering plans that are appropriate and feasible for the facility, a procedure for warning individuals of the situation, and a procedure for contacting the appropriate law enforcement agency.

In your training, encourage individuals to consider the environment in which they work and identify two possible escape routes. If possible, identify a secure location in your facilities where individuals could take cover and hide. Hiding in a secure location has been extremely effective in active shooter situations. The shooter knows there is limited time before law enforcement arrives and will typically move on from locked doors rather than use that time to attempt to force entry.

In an active shooter situation, do not assume that someone else has called 9-1-1. Call if you can do so without slowing down your exit or revealing your hiding place. When calling, be prepared with your exact location (address, floor you are on, section of building, etc.). If you have the information, provide the number of shooters, including a description of the individual(s) and any weapons, their current location, and if there are any victims.

It is important to note that even when law enforcement arrives, the danger is not over. The responsibility of the first officers on the scene is to stop the shooter before they do anything else. Officers will be under stress and prepared to use deadly force. If an officer sees you, they will look at your hands for a threat, so put your hands up, spread your fingers, show them your palms and stay very still.

The U.S. Department of Homeland Security (DHS) aims to enhance preparedness through a “whole community” approach by providing products, tools, and resources to help you prepare for and respond to an active shooter incident. Visit their website to access the many resources available to help your nonprofit with this important area of emergency preparedness.

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