The attempted car bombing in Times Square and the unfolding environmental disaster in the Gulf Coast remind us of the importance of preparing for emergencies. Particularly when companies face lawsuits alleging failure to safeguard employees, customers or the community – lawsuits that are common when the unexpected occurs – companies face the question: “Should more have been done?”
Most companies can do more; for example, various forms of risk assessments, physical or electronic defenses, and monitoring and mitigation systems can be deployed or enhanced. But resources always are limited. Allocating those resources wisely requires thought and attention to government guidance.
Two private sector preparedness programs administered by the Department of Homeland Security (DHS) can help a business’s employees, customers, and community and may even limit liability. One program applies to a broad range of emergencies; the other is terrorism-specific but can apply to any form of terrorism. More companies should take advantage of these programs.
The broader program is called the Voluntary Private Sector Preparedness Accreditation and Certification Program (PS Prep). PS-Prep identifies widely accepted preparedness standards – basically guides to drafting company emergency procedures – and encourages incorporation of these standards into company policies. Companies that incorporate any of the standards may choose to get certified by an accrediting organization.
Possible advantages from incorporating a preparedness standard into company policies include the safeguarding employee, customer, and community welfare and possible mitigation of damage in an emergency. In addition, if a company faces lawsuits following an emergency, a certification that a company adopted a DHS-endorsed preparedness standard could help the company in litigation.
The second program, which is focused on terrorism preparedness, is explicitly designed to help companies defend against lawsuits. The DHS-administered Support Anti-terrorism by Fostering Effective Technologies (SAFETY) Act is intended to facilitate the development and deployment of “anti-terrorism technology” by capping (and in some circumstances precluding) liability for those who have developed or deployed the technology and received one of several types of DHS approval.
While the SAFETY Act applies only in the event of a terrorism incident, the definition of “anti-terrorism technology” is incredibly broad. It can include not only products and intellectual property but also services of various types. Many mundane services, including security services (e.g., guards), analytical services (e.g., risk assessments) or emergency preparedness services may qualify as “anti-terrorism technology.”
The relative scarcity of service companies that have sought SAFETY Act approval has been a surprise to many observers, including some in the SAFETY Act office at DHS, who have said that many companies may be missing opportunities to obtain significant liability protections.
The Times Square car bomb and the Gulf Coast disaster may soon fade from the headlines, but companies would be wise to consider utilizing DHS programs to prepare for the next emergencies.