Emergency Management When Emergency Management

Emergency Management

When emergency management policies are put in place, and an emergency situation arises, what are the legal ramifications? This paper delves into those issues and more with reference to emergency management.

As to the federal government in the United States, when emergency management functions are put in place in a response to an emergency, the Stafford Act becomes a shield from liability for federal employees and those legally part of the federal effort. The Stafford Act states that the federal government "…shall not be liable for any claim based upon the exercise or performance of or failure to perform a discretionary function or duty on the part of a federal agency ort an employee of the Federal Government in carrying out the provisions of this Act" (42 U.S. Code, section 5148) (Lindell, et al., 2006, p. 464).

The Stafford Act does allow, however, some "limited remedies" for those who were injured or killed from the "countermeasures" that the federal government or its employees put in place as a result of the emergency. However immunity from liability is generally granted to those who "…manufacture, distribute, or administer medical countermeasures under an official emergency declaration" (Lindell, 464). That immunity clause kicks in if it can be proved that "some form of negligence exists"; moreover, the Stafford Act gives the power to actually declare an emergency to the Secretary of the Department of Health and Human Services.

Lindell (p. 466) reports that four states (Alaska, Kansas, South Carolina, and Utah) have extended "discretionary immunity" when emergency responders are operating "within an existing plan to conduct disaster drills and exercises."

Author David Alexander explains that when there is a legal obligation to save people who are either injured or threatened by a disaster then failure to honor that obligation "could be construed as criminal negligence" and that opens the door to prosecution (Alexander, 2002, p. 126). No disaster manager or emergency management professional would have "the courage to declare an emergency before it is too late to take avoiding action" like an evacuation if that manager did not have an assurance of indemnity for his or her employees or other professionals that are part of the emergency team. Much of this legal business should have been clearly worked out and explained in any emergency plan, Alexander explained.

In fact in most cases the first responders and frontline emergency workers should have fully filled out a "valid release document" that "absolves their superiors from liability" (Alexander, p. 127). And what happens when an emergency management team fails? For example, when rescue workers are injured in the process of rescuing people from a disaster, because there can be issues and questions of "negligence, willfulness, risk taking and causality," Alexander goes on; hence release documents must have been signed and a valid emergency management plan needs to have been put in place.