Planning for an emergency can be a complicated task. Emergencies, almost by definition, are tough to predict and, therefore, tough to prepare for. 
And even carefully planned emergency preparedness procedures can go awry if a disability prevents an employee from being able to evacuate the workplace in a dangerous situation.
Recently, attorneys familiar with workplace issues were asked what reasonable accommodations are appropriate for employees who can’t take stairs during an emergency. Bottom line, according to the attorneys: Employers need to involve employees with disabilities in their emergency preparedness planning.
The question of what to do when an employee can’t take stairs has “no universal, one-size-fits-all answer,” Jerrald L. Shivers, an attorney with The Kullman Firm in Jackson, Mississippi, wrote in the April issue of Mississippi Employment Law letter. But he advises getting input from affected employees as well as the first responders that likely would be involved in an emergency. “Having an evacuation plan for all employees (not just workers with disabilities) is a good idea for all employers,” he wrote.
Shivers also suggests consulting a document from the Federal Emergency Management Agency (FEMA), which points out, among other things, that employers first need to identify who might need assistance. FEMA says “buddy systems” and “fire wardens” can be helpful but aren’t a total solution. Sometimes the employees with disabilities and the buddies assigned to help them negotiate stairs might not be working at the same time and place or may not be able to get together in an emergency.
The FEMA document says to assign at least two buddies who are work associates of an employee with a disability. The document also says floor “wardens” should be appointed for every floor, and those wardens should be alerted to the work location of employees with disabilities.
ADA concerns
Reggie Gay, an attorney with the McNair Law Firm, P.A. in Greenville, South Carolina, reminds employers that the Americans with Disabilities Act (ADA) prohibits employers from excluding individuals with disabilities from employment or related activities because of fears about workplace emergencies.
“You may lawfully exclude someone who is disabled only if you can demonstrate he poses a ‘direct threat’ that cannot be eliminated or reduced through reasonable accommodations,” Gay wrote in the April issue South Carolina Employment Law Letter.
Jo Ellen Whitney and Michele L. (Warnock) Brott, attorneys with the Davis Brown Law Firm in Des Moines, Iowa, addressed the issue in an article in the April issue of Iowa Employment Law Letter. “The first step is to have a discussion about what the employee can and cannot do in the event of an emergency,” they wrote. That discussion allows the employer and employee “to gather information and exchange accommodation ideas.”
Mark Schorr, an attorney with Erickson & Sederstrom, P.C. in Lincoln, Nebraska, points out that an accommodation “depends not only on the individual and his specific abilities but also on the layout of your business and the building where it’s located.”
“Engaging in the ADA’s interactive reasonable accommodation process with the employee should be your starting point,” Schorr wrote in the May issue of Nebraska Employment Law Letter.
EEOC input
The Equal Employment Opportunity Commission (EEOC) has a fact sheet on how employers can obtain and use employee medical information as part of emergency evacuation procedures. The document states that “federal disability discrimination laws do not prevent employers from obtaining and appropriately using information necessary for a comprehensive emergency evacuation plan.”
The EEOC fact sheet points out that employees may have medical conditions that aren’t visually apparent, but they still need assistance during an evacuation. “Employers, therefore, are allowed to ask employees to self-identify if they will require assistance because of a disability or medical condition.”
The fact sheet also addresses the three ways employers can legally identify individuals who may require assistance.
- After making a job offer but before employment begins, employers may ask all individuals whether they will need assistance during an emergency.
- Employers may periodically survey all current employees to determine whether they need assistance in an emergency. The employer must make it clear, however, that self-identification is voluntary. The employer also must explain the reason the question is being asked.
- Employers may ask employees with known disabilities if they will require assistance, but they shouldn’t assume that everyone with an obvious disability needs help evacuating. “For example, many individuals who are blind may prefer to walk down stairs unassisted,” the fact sheet says.
The EEOC also addresses who is allowed to have information about employees needing assistance. “The ADA has provisions that require employers to keep medical information about applicants and employees confidential,” the fact sheet says. “These provisions, however, include an exception that allows an employer to share medical information with first aid and safety personnel.”