Delaware Governor Jack Markell declared a state of emergency and instituted a driving ban limiting driving to emergency vehicles only as a result of the record-setting snow storms that hit the Northeast this week. While State government strongly urged employers to consider their employees’ safety and close their businesses for the duration of the state of emergency, nothing prohibited employers from opening for operation during the storm.
But employers should consider more than employee safety when choosing to open their businesses during a state of emergency. At least one case, decided by the Delaware Superior Court after the blizzard of 1996, noted that an employer could be liable for an employee’s injuries if the employee was called in to work during a state of emergency.
While the general rule is that an employer is not responsible for an employee’s injuries if those injuries are sustained outside of the employer’s property, there are exceptions. One such exception is that an employer may be liable for an employee’s injuries, sustained while travelling to the employer’s property, if the employee is called to work when he was not otherwise expected at work. This exception has not yet been applied to a case where an employee is injured coming into work during a state of emergency.
In the end, while it may be financially costly, employers will garner employee good will and avoid liability for employee injuries by closing during a state of emergency.
Garrison v. State, No. 96A-05-004, 1996 Del. Super. LEXIS 443 (Del. Super. Ct. Oct. 8, 1996).