This article originally appear in The ABA Journal March 17, 2020.
From advising employers how to respond when an employee tests positive for coronavirus to counseling employees afraid of catching it at the office, lawyers are working around the clock to help clients navigate the uncharted legal waters sparked by the rapidly spreading COVID-19.
Some law firms have created multidisciplinary task forces to assist clients, both domestic and international, in tackling the myriad challenges posed by the pandemic.
These lawyers and firms are helping others at the same time they are grappling with the significant effects of coronavirus on their own operations, such as the need to close their offices and require employees to work remotely.
Firms are also bracing for the pandemic’s long-term economic impacts that could boost demand for some legal services, while depressing the market for others.
BakerHostetler and Alston & Bird are among the firms that have created coronavirus task forces comprised of lawyers from multiple practice areas.
Amy Traub, chair of BakerHostetler’s national Labor and Employment Group, says her firm formed one because attorneys there were “being inundated with questions and concerns from employers and companies across the country.”
“There was really an immediate need by our clients for information on how to address in real time these very unusual circumstances,” says Traub, a New York-based partner.
Many employers have inquired about how to treat employees who demonstrate symptoms of coronavirus or have been exposed to others diagnosed with COVID-19, Traub said. She recommends employers ensure they are taking actions in line with the latest guidance from the Centers for Disease Control and Prevention when determining which employees should be required or requested to self-quarantine.
If an employer decides an employee cannot come into the workplace, Traub says the employer must ensure it remains in compliance with other laws that could come into play, such as the federal Family and Medical Leave Act and state/local paid sick time laws.
The FMLA, for example, requires employers with more than 50 employees within 75 miles of the company’s worksite to provide employees with job-protected, unpaid leave for certain medical and family reasons. Employees who take FMLA leave are entitled to receive the same health coverage from their employers as they were before taking leave.
BakerHostetler is also advising employers to have a plan in place in case employees are exposed to the coronavirus or diagnosed with it.
“An employer cannot just sit by idly and watch the world address the coronavirus issues without itself addressing them internally in their workplace,” Traub says.
She says an employer plan could include these elements:
- A description of how the business of the organization will continue in the event of a temporary closure, government shutdown or furlough.
- A remote work policy that allows the continuation of operations while employees work from home.
- Additional cleaning or sanitization services, along with the provision of soap, hand sanitizer and disinfectant wipes to ensure a safe workspace.
- Continual communications to the workforce that provide up-to-date, accurate information on best practices and precautions for protecting oneself against COVID-19.
Guidance for Employees and Health Care Institutions
Lawyers who represent employees say they too have been fielding a steady stream of questions from workers about the implications of coronavirus, particularly as it relates to the safety of their workplaces.
Carney Shegerian, founder of California-based Shegerian & Associates, says he advises employees worried about symptoms they are experiencing—or are fearful of experiencing down the line if they remain in their workplace—to request their employers provide reasonable accommodations as required by law.
“It is just a blatant violation of the law if they are not accommodating them, including [through] work-at-home situations,” Shegerian says.
Unsurprisingly, health care lawyers also have been in high demand in recent weeks.
Attorney Melissa L. Markey says she has been busy advising health care institution clients not only how to respond appropriately to patients diagnosed with coronavirus or exhibiting symptoms of it, but also how to properly address the concerns of employees and the broader community.
The Denver-based lawyer at Hall, Render, Killian, Heath & Lyman, P.C. says she has emphasized that while COVID-19 must be taken very seriously, health care officials should take steps to avoid creating “undue panic.”
“We are working with our clients to approach this in a very logical, reasoned and science-focused way,” Markey says.
A science-based approach involves looking to guidance from public health authorities, particularly the CDC, before taking coronavirus-related actions, Markey says.
The CDC website provides a variety of resources for health care professionals and health departments caring for COVID-19 patients, including information about when such patients can be safely discharged from a hospital.
The CDC also offers general guidance about how to keep workplaces safe by taking actions such as postponing large meetings and gatherings.
“This is a time for everyone to be looking at not only what you are legally required to do, but at what the right thing to do is given the information that we have,” Markey says.
Impact on Law Firm Operations
Law firms have continued assisting clients with addressing the coronavirus even as they are seeing their own operations greatly impacted by COVID-19.
Quinn Emanuel Urquhart & Sullivan in New York recently shut down its New York office after one of its partners tested positive for the virus, and an attorney at Manhattan trusts and estates law firm Lewis and Garbuz, P.C. also tested positive.
David A. Brown, an Alston & Bird partner, says his firm has activated its pandemic preparedness plan in response to the coronavirus. As a result, the firm has an internal crisis management team that is meeting regularly to evaluate risks to the business and to ensure the firm is best positioned to still serve clients.
“We are able and ready to adapt and be nimble as necessary,” says Brown, who is based in Washington, D.C.
For example, Brown says the firm recently asked its lawyers and staff to work remotely through the end of the month “out of an abundance of caution and in consideration of the health and well-being of our clients and colleagues.”
Many other firms have begun closing offices and shifting to remote working as well.
Gulam Zade, CEO of legal IT consultancy Logicforce, says his company recently has fielded an uptick in requests from both existing law firm clients and potential new ones for assistance in transitioning to an environment where their workforce is remote.
A number of the firms contacting Nashville-based Logicforce are those that were not early cloud technology adopters, and Zade says he explains that implementing cloud-based systems is often a multi-month process.
“There are some things that can be done in the short term, but the firms that it is going to be easiest to deal with potential coronavirus issues are the ones that implemented cloud-based technology six months ago, a year ago or three years ago,” he says.
Preparing for an Economic Downturn
Law firms and other legal organizations also are bracing for a possible recession—potentially a lengthy one—sparked by the fallout from coronavirus.
Brown from Alston & Bird says he’s confident there will still be plenty of work for his firm and the industry overall. This could include assisting clients seeking to address supply chain disruptions or those needing guidance on an out-of-court debt restructuring amid financial challenges.
The cancellation and postponement of major conferences, trade shows and other large events will also generate legal work extending beyond the coronavirus pandemic, predicted Kent Schmidt, a California-based partner at Dorsey & Whitney.
He said he has already started receiving calls from companies seeking guidance on whether a pandemic allows for contractual obligations to be voided.
“Long after this health crisis is over, courts will be grappling with untold numbers of litigation disputes concerning whether parties are excused from performance of their contractual obligations during this health crisis,” Schmidt said in a statement.
The litigation finance industry is also gearing up for a steady stream of coronavirus-related activity.
Allison Chock, Chief Investment Officer-US for Omni Bridgeway, says insurance-related disputes are likely to spike in the near term. Additionally, a nosedive by the economy likely would generate much more activity in the bankruptcy/insolvency space, she predicts.
“A downturn in the economy historically speaking means an uptick in disputes, both in litigation and in arbitration,” Chock says. “With that increase will inevitably come more and more opportunities for the litigation finance industry.”