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POST-SEPTEMBER 11 SERIES Dealing With the Mail: Meeting Employer Duties and Coping With Employee ResponsesFirst, the good news: there is help available! Last week, a Firm client found a bulky package addressed to President Bush in a "departed" employee's desk. After consulting with us, a call was made to the Secret Service and an agent arrived at the client's office that day to pick up the disturbing package. While testing is ongoing, it appears that there was no cause for alarm. The package simply contained a videotape and no suspicious residue. The "moral" of this story is simple: the government is ready and able to timely respond to threats. Employers also need a plan to respond to threats before they become reality. All employers want to protect their employees from the dangers that may arrive by mail, whether by way of explosives or biological agents like anthrax. Aside from the "do the right thing" obligation, what legal duty does an employer have to protect its employees from harm transmitted by mail? For those employees who are workers' compensation subscribers, the exclusive remedy provision of the Texas worker's compensation statute insulates the employer from claims arising from nonlethal injuries and illnesses. In the case of a lethal exposure, the statutory beneficiaries of the deceased employee could still sue for gross negligence. Nonsubscribers enjoy no such protection and could be sued for common law negligence. Under OSHA's "general duty" clause, an employer must make the workplace safe from known and reasonably foreseeable threats. In most cases, an employer cannot be liable under either OSHA or state tort law for the criminal acts of third parties — like terrorists — directed at its employees. However, the employer is required to take reasonable precautions to protect its workforce. For all employers, that means staying up-to-date on the most recent government pronouncements on the level of threat and reasonable precautions. We suggest reviewing the Centers for Disease Control and Prevention's health advisory issued on October 12, 2001: "How to Handle Anthrax and Other Biological Agent Threats," and continuing to monitor the CDC's Web site. This site provides the scientific perspective on the threat in non-inflammatory language, and also gives common-sense precautions. For a few governmental employers, providing gloves and masks for
initial mail handling and sorting may be prudent. However, for most
employers, prudence simply requires reminding employees of the common
sense safety precautions in the "Sample Mail Handling Announcement"
detailed below. Sample Mail Handling AnnouncementIn light of recent events, the media — along with governmental and public agencies — are distributing information on how to react to mail and questionable packages that may contain explosive devices or agents of bioterrorism. While we do not expect these types of items to appear in our offices, we should all be aware of how to respond to these unusual situations. WHAT TO LOOK FOR
WHAT TO DO
If you would like a free copy of the CDC's health advisory, "How to Handle Anthrax and Other Biological Threat Agents," call:
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