The rapid spread of coronavirus (COVID-19) is disrupting law firms large and small. The challenges are many: Clients accustomed to face-to-face interactions must now be served from a distance. Employees exhibiting signs of sickness must be separated from the workforce — and systems must be put in place to keep their health information confidential. Home-based staff members will need time-consuming guidance to use unfamiliar technology.
Legal managers must develop plans to deal with this shifting operational terrain, beginning with the maintenance of a virus-free environment.
“An employer’s general duty is to maintain the health and safety of the workplace,” says Joseph Deng, an employment law Partner at Baker McKenzie in Los Angeles, California. “The office must be free of hazards that are likely to cause death or serious physical harm. In light of the virus, employers should pay close attention to what the national, state and local authorities are advising.”
At the national level, the Centers for Disease Control and Prevention (CDC) is continually updating its website with news and advice about reducing the chances of infection. To access employer-specific information, go to the Interim Guidance for Businesses and Employers page.
State and local authorities may also provide information on their own websites. “Advice at the local level is especially important,” says Deng. “It will be directly related to what’s happening with the virus in the area where a firm is located — just as a recommended response to a hurricane will depend on the proximity of the storm to an organization.”
Much of the guidance from all levels deals with the proper sanitation of the work environment. “The most significant thing an organization can do is make sure employees engage in proper hygiene practices,” says Susan Gross Sholinsky, Vice Chair of the labor and employment practice at Epstein Becker Green in New York. “They should keep their premises clean, disinfecting doorknobs, elevator buttons, community equipment such as printers, and commonly used kitchen items such as refrigerator handles.”
Employers are also taking steps such as the following:
- Remote work: Many law firms and legal departments that have the technological capability to do so have instructed their employees to work from home, according to Above the Law.
- Limiting travel: “Most of the organizations I am talking to are limiting or prohibiting all future international travel,” says Sholinsky. “They are also asking employees if they have traveled internationally, whether for business or pleasure, and are requiring them to stay home if they have visited countries with elevated risk. When feasible, audio and video conferencing is taking the place of in-person visits.”
- Restricting outsider visits: “Some companies are limiting third parties who can come into the offices, separate and apart from their own employees,” says Sholinsky. “Visiting clients and vendors are being asked where they have traveled in the last few weeks and whether they are exhibiting any flu-like symptoms.”
- Coordinating with vendors: The CDC website suggests businesses “talk with companies that provide contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.”
Despite management’s best efforts, some employees may fall sick. Anyone who comes down with symptoms of the virus (fever, coughing and shortness of breath) should be separated from the workplace and required to remain at home. That could help protect their coworkers from infection, helping to contain the spread of the disease.
“Advice at the local level is especially important. It will be directly related to what’s happening with the virus in the area where a firm is located — just as a recommended response to a hurricane will depend on the proximity of the storm to an organization.”
Afflicted individuals should contact their health care provider, or the state or local health department, for advice on what to do next. “Infected individuals should not go straight to the doctor’s office or to the hospital emergency room because they are not [all] equipped for infectious disease control,” says Deng. “Instead, they should call ahead to determine whether symptoms are consistent with a COVID-19 infection. If they are, the individuals will be directed to the appropriate testing facility.”
Employees with the relevant symptoms should stay away from the workplace even if they have not been definitively diagnosed with the coronavirus. “Traditionally in our country’s culture, people come to work sick,” says Brian Baker, Vice President of Hagerty Consulting, an emergency management consulting firm based in Evanston, Illinois. “But the novel coronavirus is extremely contagious, and we do not have the diagnostics to tell us who has the virus and who doesn’t.”
A law firm may need to change its traditional sick leave policies in light of the coronavirus. “Sometimes a liberal sick leave policy is tough for employers,” says Baker. “But it is much better to lose a portion of your workforce than to lose all of them.”
Employers must decide whether to pay people who are out sick. While no national law requires they do so, some states and cities have passed legislation touching on the matter. Jurisdictions with some type of sick leave laws include California, Washington, Michigan, Vermont, San Francisco and New York City. (As we went to press, Congress was deliberating a bill to provide paid sick leave to workers afflicted with COVID-19.)
Even organizations located outside of such protected areas should consider reimbursements for quarantine time. “Employers should avoid being penny wise and pound foolish,” says Deng. “They should establish nonpunitive leave policies, and that includes loosening requirements that employees provide doctors’ notes to prove sickness. Bear in mind that local health workers will likely be overwhelmed with live cases and may not be able to provide such notes.”
Sick leave reimbursement decisions may be based on the circumstances surrounding the event. “In some cases, an individual who is out sick for an extended period of time because of COVID-19 may be entitled to short-term disability,” says Sholinsky. “An employee who was infected while on business travel to an affected country may be eligible for workers’ compensation.”
On occasion it is not the employee who becomes sick, but a child, parent or a loved one. Or a child must stay home because schools and day cares have closed. Or an employee may express fear about using public transportation to commute to work. In all such cases, employers must decide whether to grant paid sick leave.
Some states, however, have paid family leave laws that mandate partial pay for employees who are out of work because they are caring for sick family members, says Sholinsky. “Some states’ and cities’ sick time laws provide for paid sick time when an individual’s workplace — or a child’s school or day care center — is shut down due to a declared public health emergency.”
Concerns of employee privacy should be paramount for any organization dealing with the coronavirus outbreak. “Generally speaking, if you are asking questions about an employee’s life outside of the workplace, there should be a legitimate, business-related reason for doing so,” says Sholinsky. “You need to balance the important information needed about someone’s health in light of COVID-19 concerns against the individual’s right to privacy regarding their personal medical situation.”
“You need to balance the important information needed about someone’s health in light of COVID-19 concerns against the individual’s right to privacy regarding their personal medical situation.”
There is only a limited number of health-related questions employers are permitted to ask employees, says Sholinsky. “If someone was quarantined after traveling to a country with elevated risk, for example, and shortly after returning to the office they are out sick, it would be appropriate to ask whether they are experiencing flu-like symptoms and whether they have visited a doctor or been tested for COVID-19.”
Once obtained, personal medical information should be kept safe from dissemination. “If you are requiring employees to make declarations about their travels or their health conditions, you need to be careful about how the information is collected and disclosed,” says Deng. “Handle the information with respect to COVID-19 in the way you would handle any other personal information.” That means restricting information to those with a need to know. “If you send someone home with symptoms, the only people who should know about it are those individuals who have come into direct contact with the person.”
All actions must conform to state and city employee privacy laws, which vary widely. Some federal laws may also apply. “Bear in mind that under the Americans with Disabilities Act (ADA), employers are generally not allowed to make disability-related inquiries about preexisting health conditions or other private medical information,” says Deng. The law also prohibits giving a medical exam. “It’s allowable to ask employees if they have a cough or fever or shortness of breath. But you may have issues under the ADA, or under state laws, if you take their temperature or do any other screening that might be construed as a medical exam.”
One exception to this rule, says Deng, is if there is a “direct threat” to the workplace, such as your city being an affected area during this global pandemic. “You are allowed to make medical inquiries and ask about disability-related matters if there is no other way to get information that will protect the workforce. Assessment as to what constitutes a direct threat should be based on objective factors. Be informed about what CDC guidelines and what local and state authorities tell you. That will inform your duty and level of care with respect to workforce.”
In carrying out the policies and procedures described in this article, law firms must avoid actions that are discriminatory, consciously or otherwise. “Although it is OK to ask employees if they have traveled recently to high-risk locations and to tell them to self-quarantine for a two-week period, you have to apply the policy without reference to race, ethnicity or national origin,” says Deng.
The need to avoid discrimination speaks to a practical issue: The novel coronavirus causing COVID-19 can strike any individual regardless of background. “Just because people are of a certain race or national origin does not mean they have a higher chance of infection with the virus,” says Sholinsky. “Employers should be careful not make such assumptions.”
Employees are not the only people subject to health risks from workplace infection. Businesses also need to protect anyone who comes into contact with staff members.
“To the extent the firm is a place of public accommodation, employers need to be mindful of the risks to clients, vendors and other visitors,” says Sholinsky. “If asked what the organization is doing to protect against the spread of the virus, the firm should inform individuals that the premises are being cleaned and maintained consistent with CDC recommendations.”
“Such individuals may be reluctant to request support because doing so is no longer as easy as talking with someone across the hall. Law firms must remain in communication with remote employees to keep them functional and highly billable.”
Strictly from a public relations perspective, firms may wish to advise clients if a staff member has been diagnosed with the disease. “Clients will likely not take kindly to finding out they were at a place where an employee had been impacted and they were never informed,” says Deng. At the same time, organizations should be mindful of not identifying which employee was affected. “You need to maintain the delicate balance between getting the information out in a manner that will protect everyone, while also complying with privacy laws about disclosing medical information.”
PLAN FOR DISRUPTION
How can a law firm continue to function during a time of severe disruption? The answer involves a careful analysis of alternative ways to get work done.
“The most important thing is to have a plan and communicate it to employees and clients,” says Baker. “The plan should answer two questions: What functions does the organization need to perform to stay in business? And how can those essential functions continue, given a possible uptick in employee absenteeism and a decrease in the client base?”
Organizations may consider these steps:
- Allow teleworking for those employees able to perform their duties from home.
- Establish flexible work hours for employees who must stay at home at certain times to care for family members.
- Share best practices with other employers in the region and with the local chamber of commerce.
Additional ideas are available in the CDC’s Interim Guidance for Businesses and Employers.
Some firms are asking outside consultants to help deal with the trials posed by COVID-19. “Demand for our services has increased by 30% to 40% over where it was several weeks ago,” says Michael Kemps, Chief Executive Officer of one such organization called Innovative Computing Systems.
Kemps finds that law firms need assistance in two key areas:
- Technical expertise: “We are assisting end-users new to working from home with technical issues such as accessing the internet and connecting securely to the organization’s systems,” says Kemps. “They also often need assistance using software applications remotely rather than on desktops.” Newly remote workers should be encouraged to reach out for assistance. “Such individuals may be reluctant to request support because doing so is no longer as easy as talking with someone across the hall,” says Kemps. “Law firms must remain in communication with remote employees to keep them functional and highly billable.”
- Data integrity: Many law firms that had not yet migrated to cloud-based data solutions now face difficulties keeping remote offices supplied with the latest information. “For these law firms we developed a light version of our cloud solution that provides limited access to basic systems such as email and document management,” says Kemps. “We can spin up this solution quickly — often in three to five days — so the firms can remain functional and support their clients.”
Such law firms still face issues dealing with thicker and larger systems such as litigation support, time and billing, accounting and case management, notes Kemps. “Also, if a firm experiences a hardware failure on the office premises and personnel have limited access to the physical space, the ability to resolve the problem may be extremely limited.”
Dealing with the challenges of running operations remotely can lead to oversights, notes Kemps. “Law firms should beware becoming slack with critical maintenance procedures such as keeping up with software patches.” He also advises having backups in place for anticipated hardware failures. “Consider purchasing spare components such as switches and firewalls that are key to keeping the firm operational and which may be more difficult to obtain when supply chains become disrupted.”
However thoughtful the plan, it will only succeed if clearly communicated. “We recommend that employers clearly communicate their rules and policies regarding the coronavirus,” says Sholinsky. “Organizations should link their virus-related communications to their intranet sites and tell employees to check those sites frequently for updates and guidance.”
There is a ton of information out there related to COVID-19, and it can feel overwhelming. ALA has created a resource page with latest about this pandemic and collated resources that can help you manage your firm during this uncertain time. Check back regularly, as we update it often. Some highlights:
- Access to our free on-demand webinar, The Novel Coronavirus (COVID-19) Is Here. Now What?
- Information about Teladoc, a VIP business partner with ALA. If you are feeling symptoms of COVID-19, you need to seek medical care. But you should call ahead before you go to a doctor’s office or emergency room. Teladoc physicians can answer questions about the disease, evaluate your risk, and provide support by phone or video to help relieve symptoms for affected patients.
- A Coronavirus Preparedness Kit, provided by business partner Agility Recovery. ALA members have access to a free preparedness checklist and a free coronavirus preparedness tabletop exercise, which they can use to game out responses.