Necessity of Plans

Societal Changes

Americans enjoy relative security in their everyday lives. Yet, the threat of emergency situations remains. From the string of Florida hurricanes and California wildfires to the East Coast blackouts and the September 11th terrorist attacks, Americans have been acutely reminded in recent years of the devastation caused by natural disasters, technological accidents, and acts of terrorism. Like most of the nation, the Federal Government has focused greater attention on not only responding to emergencies, but also preparing for them. This is due, in part, to events such as the bombing of the Oklahoma City federal regional building on April 19, 1995; the terrorist attacks on the Pentagon and the World Trade Center on September 11, 2001; and the shutting down of National Capitol Region (NCR) federal offices due to Hurricane Isabel on September 18-19, 2003.

Like most parts of society, the Federal Government has re-evaluated its approach to emergency preparedness and response. Significant improvements have been made. It is increasingly recognized that while preparedness at home is important, having a plan for the workplace is equally as critical. In addition to keeping employees safe, there is a need to ensure the safety of visitors. Still, research during the last decade has shown that people with disabilities are one segment of the workforce that is often overlooked during such planning efforts.

Explanations for this disparity vary but may include fear, lack of knowledge, a decision to disregard the seriousness of a potential threat, or even the belief that there will be no personal effect. Employers may be hesitant about recruiting or retaining people with disabilities due to concerns related to securing their safety during an emergency. A recent case filed by the U.S. Equal Employment Opportunity Commission (EEOC) in the U.S. District Court for the Eastern District of Louisiana illustrates this concern:

A former employee was awarded nearly $1.3 million after being terminated. The employer, an international science and chemical company, asserted that she was a "direct threat" because of being incapable of safely evacuating due to her inability to walk. However, a Human Resources Manager later admitted under oath that the employee was not a direct threat and was capable of safely evacuating by walking.

Keep in mind that job seekers, employees, and visitors with disabilities may also have concerns about their safety in an emergency. They may be reluctant to seek employment in or visit certain locations due to a fear of being trapped or not being accommodated in a dangerous situation. Consequently, emergency preparedness plans that do not include or adequately consider the needs of people with disabilities may hinder equal access to employment, goods, and services.

Plans that do consider the needs of employees and customers with disabilities must also be effectively reviewed, updated, and practiced on a continual basis. Consider this real-life example of a U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) Compliance Assistance Officer:

In August 2001, OSHA staff at the Manhattan Area Office completed an uneventful evacuation drill from their offices on the top floor of Building 6 of the World Trade Center complex. Managers felt confident that everyone could escape the building safely in an emergency — including an employee who had recently returned to work and was temporarily using a wheelchair. The evacuation plan had specifically been revised to accommodate his needs.

Within weeks, the practice proved more valuable than anyone could have imagined.

On the morning of September 11, 2001, OSHA employees had begun a routine day when an explosion shook the building. The Assistant Area Director immediately ordered everyone to evacuate. As the first plane hit the North Tower of the World Trade Center, debris began falling on Building 6. Staff rushed into the hallway. Three employees helped their co-worker in the wheelchair down the corridor and into a freight elevator they had used during the practice drill. They descended to the basement, into a garage, down some steps, and into another garage, where they escaped from the building.

The group moved outside just as the second plane hit the South Tower. As the group moved away from the site, the North Tower collapsed, destroying OSHA's Manhattan Area Office as it fell.

While there are no guarantees when it comes to maintaining personal safety or the safety of others in the event of an emergency, this OSHA employee is living proof that taking into account both those with and without disabilities in planning, training, and practice efforts is achievable. And, more importantly, such planning and practice does make a difference. "Sticking to the plan, and using the elevators is probably what saved us," explained the OSHA employee's co-worker.³

As federal agency plans continue to evolve, it is vital to consider the needs of all employees and visitors, including those with disabilities. The perspectives of people with disabilities should be taken into account throughout the mitigation, preparedness, response, and recovery phases of emergency management. While much has been accomplished, there remains much to do, throughout the Federal Government, in the Washington, DC area, and at federal facilities nationwide. Employees — including those with disabilities — should not make assumptions with regard to emergency preparedness. It is the responsibility of each individual to actively prepare, to the extent possible, whether on an individual, office, or agency level. It is also important to keep in mind that some individuals with cognitive or developmental disabilities may need additional assistance in preparing for and responding in emergencies. Consequently, thoughtful planning, collaboration, and steadfast commitment by agencies, managers, planners, first-responders, employees, and service providers are key to ensuring a safer workplace for all.

Legal Considerations

Recognizing that everyone, including individuals with disabilities, should enjoy the same level of safety and security in their communities and work environments, President George W. Bush issued Executive Order 13347, Individuals with Disabilities in Emergency Preparedness, on July 22, 2004. The Executive Order directs the Federal Government to work together with state, local, and tribal governments, as well as private organizations to appropriately address the safety and security needs of people with disabilities. In addition to the Executive Order, there are a number of regulations, codes, and guidelines federal agencies must take into account.

For example, federal agencies located in buildings managed by the U.S. General Services Administration (GSA) must have an Occupant Emergency Plan (OEP) that complies with U.S. Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) regulations.⁴

The OEP should set forth procedures for safeguarding lives and property in the short-term. Variables such as building location, proximity to prominent landmarks or buildings, design features, and the missions of agencies occupying the building impact security and safety measures. Consequently, security, shelter-in-place, and evacuation procedures should be tailored to the facility. For GSA-controlled property, this is mainly accomplished through recurring threat assessments completed by the Federal Protective Service (FPS)/U.S. Department of Homeland Security (DHS). Federal agencies in buildings not managed by GSA may contact the Federal Bureau of Investigation or local police for emergency preparedness and/or threat assessments.⁵

Homeland Security Presidential Directive 5 (HSPD-5)

Issued in 2003, the Homeland Security Presidential Directive 5 (HSPD-5) established a single, comprehensive National Incident Management System (NIMS). The objective was to ensure that all levels of government had the capability to work efficiently and effectively together. As such, with regard to domestic incidents, crisis management and consequence management are treated as a single, integrated function, rather than as two separate functions.

The Directive requires all federal agencies to develop an Incident Command System (ICS) to facilitate a national, coordinated response to domestic emergencies. The general framework set forth in this Directive was patterned after the U.S. Department of Agriculture's (USDA) Forest Service ICS program. A closer look at the USDA ICS program reveals the establishment of a particularly noteworthy precedent: the position of Special Needs Advisor to the Incident Commander. While NIMS does not specifically mention such a position within the ICS, it does allow for this appointment at the discretion of the Incident Commander (IC).

The U.S. Access Board's ADA-ABA Accessibility Guidelines

On July 23, 2004, the U.S. Access Board issued updated accessibility guidelines for new or altered facilities covered by Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA), so a consistent level of access is specified under both laws. Through this update, the Board sought to simplify compliance by making its guidelines more consistent with model building codes and industry standards. The Board coordinated extensively with model code groups and standard-setting bodies in order to reconcile differences. In particular, the Board sought to align the guidelines with the International Building Code (IBC) and access standards issued through the American National Standards Institute (ANSI).

While the Board's guidelines are not mandatory, they do serve as the baseline for enforceable standards maintained by other federal agencies. In this respect, they are similar to a model building code in that they are not required to be followed except as adopted by an enforcing authority. Under the ADA, the U.S. Department of Justice (DOJ) and, in the case of transit facilities, the U.S. Department of Transportation (DOT) are responsible for enforceable standards based on the Board's guidelines. Several other agencies, including the U.S. General Services Administration (GSA), the U.S. Department of Defense (DOD), the U.S. Department of Housing and Urban Development (HUD), and the U.S. Postal Service (USPS) hold similar responsibilities for standards used to enforce the ABA.

The four agencies responsible for implementing the ABA (HUD, DOD, GSA, and USPS) are now revising their ABA implementing regulations to adopt the new ABA Accessibility Guidelines published by the Board. The USPS has already adopted the new requirements. The DOD's rule is a work in progress. GSA — which covers most federal buildings — expects to publish a final rule in July 2005 that will require federal agencies and other entities subject to the ABA to comply with the new ABA Standards. Those guidelines will require covered entities to comply with the requirements for accessible means of egress established by the IBC in either its 2000 edition (as supplemented in 2001) or its 2003 edition.

The IBC provisions explicitly require "areas of refuge" in newly constructed buildings that do not have supervised sprinkler systems. These technical requirements for areas of refuge are essentially the same as the ADA requirements for areas of rescue assistance.

The Rehabilitation Act of 1973, as amended (Rehabilitation Act)

The Rehabilitation Act of 1973, as amended, prohibits discrimination on the basis of disability in federal programs or those receiving federal funding, and in the employment practices of federal agencies and their contractors. The Rehabilitation Act regulations also use the Uniform Federal Accessibility Standards (UFAS) for new construction and alterations, which makes it difficult to articulate specific standards for a facility covered by the ABA. However, there has been a push to have ABA buildings comply with the IBC provisions, which explicitly require areas of refuge in newly constructed buildings with no supervised sprinkler systems. The IBC model code establishes technical requirements for areas of refuge that are essentially the same as the ADA requirements for areas of rescue assistance.

• Section 501 requires affirmative action and nondiscrimination in employment by federal agencies of the executive branch. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the ADA. To obtain more information or to file a complaint, contact the Equal Employment Opportunity Office at www.eeoc.gov.
• Section 503 requires affirmative action and prohibits employment discrimination by Federal Government contractors and subcontractors with contracts of more than $10,000. For more information, visit the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) Web site at www.dol.gov/ofccp/.
• Section 504 states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives federal financial assistance or is conducted by any Executive agency or the USPS. For information on Section 504, visit the U.S. Department of Justice's (DOJ) Civil Rights Division Web site at www.ada.gov.
• Section 508 that requires electronic and information technology developed, maintained, procured, or used by the Federal Government be accessible to people with disabilities, including employees and members of the public. An accessible information technology system is one that can be operated in a variety of ways and does not rely on a single sense or ability of the user. Some individuals with disabilities may still need software or peripheral devices in order to use these systems. More information can be found at www.section508.gov or www.access-board.gov.

The Americans with Disabilities Act ( ADA)

The ADA prohibits discrimination on the basis of disability in employment; state and local government; public accommodations; commercial facilities; transportation; and telecommunications. The ADA also prohibits retaliating against, interfering with, coercing, intimidating, or harassing any individual who opposes actions made unlawful by the ADA or who seeks enjoyment of (or assists others in the enjoyment of) any rights under the ADA. The ADA's requirements apply to Congress, as well as to private entities and to state and local governments.

In most instances, an individual must have a disability or an association with someone with a disability in order to be protected by the ADA. The ADA defines an individual with a disability as "a person who has a physical or mental impairment that substantially limits one or more major life activities; a person who has a history or record of such an impairment; or a person who is perceived by others as having such an impairment." The ADA, however, does not refer to specific disabilities.

While the ADA does not refer to the development of emergency plans specifically, if plans are in place, they should include those with disabilities. Furthermore, plans may need to be established to fulfill a request for a reasonable accommodation. It should be noted that ADA regulations do require areas of rescue assistance in newly constructed buildings that do not have supervised sprinkler systems. This requirement is contained in the ADA Standards for Accessible Design. Areas of rescue assistance are not required in alterations.⁶

• Title I: Employment Employers with 15 or more employees must provide qualified individuals with disabilities equal employment opportunities. Discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment is prohibited. Questions about an applicant's or employee's disability and/or medical examinations of an applicant or employee are also limited. Employers must make reasonable accommodations for otherwise qualified individuals with disabilities, unless this would result in undue hardship.
• Title II: State and Local Government Activities All activities of state and local governments, regardless of the entity's size or receipt of federal funding, are covered. Additionally, state and local governments are required to allow people with disabilities an equal opportunity to benefit from all programs, services, and activities (e.g. public education, employment, transportation, recreation, health care, social services, courts, voting, and town meetings). This includes relocating programs or otherwise providing access in inaccessible older buildings, and communicating effectively with people who have hearing, vision, or speech disabilities.
• Title III: Public Accommodations This title covers businesses and nonprofit service providers that are public accommodations, privately operated entities offering certain types of courses and examinations, privately operated transportation, and commercial facilities. Public accommodations are defined as private entities that own, lease, lease to, or operate facilities. This includes restaurants, retail stores, hotels, private schools, convention centers, doctors' offices, homeless shelters, transportation depots, day care centers, and recreation facilities (e.g., sports stadiums and fitness clubs). Transportation provided by private entities is also covered.
  
  Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment, as well as specific architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Barriers in existing buildings must be removed when possible without much difficulty or expense.

State and Local Guidance

State and local anti-discrimination laws provide protections similar to the Rehabilitation Act and the Americans with Disabilities Act (ADA). In addition, state and local laws, regulations, and ordinances may impact general access to facilities as well as emergency planning efforts. Provisions of these laws that are inconsistent with federal laws and provide less protection are likely pre-empted; however, state and local laws that provide greater protection or greater access to facilities are not pre-empted. Such guidance applies to private facilities in which the Federal Government leases space. For more information on specific state codes, please visit the U.S. Access Board Web site.

Critical Questions

• Are agency emergency preparedness personnel aware of applicable federal, state and/or local laws? If not, what steps are being taken to change this?
• How do each of these laws affect the development, implementation and maintenance of agency emergency preparedness plans?
• In instances in which an agency leases space in facilities owned by private entities or by state or local governments, how will responsibilities for various aspects of the emergency preparedness process be allocated between the parties of the lease?

Agency Commitment

An effective emergency preparedness plan requires support and commitment from senior-level management within an agency. A preparedness plan will only be as good as the financial and personnel resources supporting it. The methods of securing and demonstrating managerial commitment to including people with disabilities in emergency planning vary from agency to agency. At some agencies, this has been accomplished through direct communications from executive-level officials, such as the Secretary or agency head. Because the protocols and forms of communications differ from agency to agency, personnel tasked with creating emergency preparedness plans must think creatively about obtaining and communicating the vital managerial buy-in.

Here are a few ways agencies have demonstrated their commitment:

• Created a position within the agency's Incident Command System (ICS) program to address the needs of special populations, including those with disabilities. This is provided for under the general framework of the Homeland Security Presidential Directive 5 (HSPD-5).
  
  Example: At the U.S. Department of Agriculture (USDA) headquarters, the position of Special Needs Advisor to the Incident Commander was established under the heading of Technical Specialist: Special Needs . This has given the disability community a voice in the ICS, and an inside advisory position where the departmental plan for emergency preparedness, occupant emergency, communications, training, and review and evaluation has been designed, written and implemented.
• Established an emergency response team (ERT). 
  
  Example: Established by U.S. Department of Labor (DOL) Secretary Elaine L. Chao and chaired by the Deputy Secretary and Assistant Secretary for Administration and Management (OASAM), the main goal of the ERT team is to develop and implement strategies to safeguard occupants of all DOL facilities. The team met frequently following September 11th and still meets on a quarterly basis. Recommendations are implemented with input from a number of agencies within DOL to ensure that all necessary issues are appropriately addressed.
  
  Initially, forums were conducted to discuss emergency evacuation strategies for people with disabilities. These forums served several functions. First, they gave individuals from the Department's disability community the chance to provide valuable input and recommendations for enhancing procedures. Meetings also provided an opportunity to update personnel on ERT evacuation planning for people with disabilities, respond to concerns, conduct trainings and demonstrations, and listen to rationales for recommendations.
• Ensured everyone has a defined responsibility in emergency preparedness.
  
  Example: At the U.S. Social Security Administration (SSA), managers throughout the agency are automatically members of their building Occupant Emergency Program Organization. They work closely with the facility designated official, whose primary responsibilities include developing the site Occupant Emergency Program, ensuring appropriate emergency procedures are followed, and preparing occupants for emergencies. They fully cooperate with the Building Occupant Emergency Coordinator, the senior official of the largest department at the headquarters building, who assists the Designated Official. Managers and supervisors assist in clearing work areas; ensuring the evacuation of employees and visitors with disabilities; assisting emergency services as necessary; and accounting for all employees in the assembly area.
  
  Example: At the U.S. Department of Transportation (DOT), the senior management has oversight responsibility. Supervisors are responsible for ensuring the safety of their employees. Employees with disabilities also participate in planning for their own safety, which may include providing necessary information to personnel responsible for assisting them in the event of an emergency. Finally, facility, emergency, and security personnel have the responsibility of planning for emergency situations in general, as well as considering the unique needs of people with disabilities.
• Conducted assessments of national and regional facilities. 
  
  Example: In this process, the U.S. Department of Labor's (DOL) Office of Inspector General concluded that a "cookie cutter" approach was not appropriate. Instead, DOL officials determined a more effective approach would be to address each situation and develop procedures that considered the needs of all employees, including people with disabilities.

Critical Questions

• Have senior-level staff demonstrated a commitment to developing, implementing, and maintaining a plan that includes people with disabilities?
• If not, what can and is being done to increase awareness of the importance of this issue, particularly among senior staff?
• If senior staff have recognized the importance of this issue, describe in some detail evidence of this agency commitment.
• How might this support be strengthened and re-affirmed? Which areas (e.g., communicating the plan, practicing) need particular work? What are some strategies for addressing these areas?