JULY 2020 | AROUND THE ABA

After COVID-19, returning to the office won’t be business as usual

Despite some optimism in the medical community about a possible COVID-19 vaccine or treatment within the next year, don’t expect law firms to return to business as usual anytime soon. In fact, just getting back into the building will be complicated.

“Returning to the work area is going to be like the new frontier. We all got thrown out of work, so to speak, and now we are trying to figure out how to get back in,” said Janelle Edwards-Stewart, a lawyer with Porzio Bromberg & Newman PC in Morristown, New Jersey.

Edwards-Stewart was among three employment lawyers who shared their view of what’s ahead as law firms begin to reopen during the American Bar Association webinar, The Employment Guide to Surviving COVID-19: Critical Issues Today & Biggest Challenges Tomorrow. Joining her were Anthony Kuchulis of Littler Mendelson PC in Portland, Oregon, and Vincent Tong of Tong Law in Oakland, California.

The panelists discussed the latest legislative guidance related to paid leave, unemployment benefits, small business assistance and the pandemic stimulus packages passed by Congress. They also explored the landscape for employers in the coming months, and discussed concerns about lengthy delays in reopening, employee retention, funding and liquidity and the likely exponential increase in employee claims for suspected violations of the many new laws quickly passed in the wake of the crisis.

Edwards-Stewart said many law firms did not have remote-work policies in place when they had to abandon their offices as the pandemic hit. As a result, employers found themselves “making it up as they went along.” But even those who did have plans will need to update them to reflect the changes ahead.

At your own law firm and in advising clients, returning to the workplace will be a multi-phased process, Edwards-Stewart said. “A lot of people are reopening and thinking they are going to walk back in and pick up where they left off. That is just not going to happen.”

Edwards-Stewart outlined three phases:

  • Phase 1 – Preopening. This phase starts long before a return to the office. She suggested organizing a planning team that should include HR, operations personnel, managers and security personnel. Use the group to develop an employee survey, seeking such information as the number of positions that require people to be in the office; how many employees prefer to work in the office; whether to stagger schedules so fewer people come in at the same time; the number of employees who need special considerations, such as the deaf or hard of hearing; whether to require employees to wear masks and gloves; the employees who have traveled out of state or out of the country recently; and any child care concerns.

    It is going to take you putting together the brains of your planning team to develop a comprehensive survey that will inform many of the things you are going to do next,” Edwards-Stewart said. “The way forward is going to be different than it was on the way out of the office.”
  • Phase 2 – Reset. Use the survey information to begin planning what the new office space will look like. Consolidate entry points into the building because you’ll want one location to monitor traffic flow into the office and perform temperature checks on employees coming in. Assess the need for additional staffing to do much more cleaning and sanitizing. Consider implementation of a wellness- or symptoms-checklist at the beginning of the workday for all employees, and perhaps adhere to a CDC-recommended emergency response plan that guides you through what to do in case of sick people in the workplace.

    Once you’ve figured out all this, you’ll need to conduct training to help your employees or your clients’ employees to become familiar with the policy changes and procedures,” Edwards-Stewart said.
  • Phase 3 – Reopen. Edwards-Stewart suggested providing employees with a virtual tour of the new office. “So, when they show up, they understand why they have to submit to a wellness check, and they know where to go as opposed to their normal back-door entrance,” she said.

Kuchulis reported on how companies might be impacted by new government legislation to deal with the fallout of the pandemic, such as the recently passed Families First Coronavirus Response Act. It provides money for free coronavirus testing; a 14-day paid leave for workers affected by the pandemic; increased funding for federal food assistance; Family and Medical Leave Act guidelines and telework; and OSHA requirements, among others.

And, Kuchulis said, expect lawsuits. “Anytime there is a major catastrophe or downturn, there is often a torrent of new lawsuits. COVID-19 is going to be no exception,” he said. “Already, there have been at least 917 federal and state lawsuits filed in relation to the pandemic and that number, obviously, is going to go way up.” The kinds of anticipated claims will come from people on the front lines — first responders, retail works, grocery store workers, nurses and EMT personnel, he added.

Like Edwards-Stewart, Kuchulis emphasized that it’s important to put policies and procedures in writing.

“Get things in writing and apply them systematically,” he said. “If it is written down and you have a coherent policy and you are taking reasonable steps to try to keep people safe, that’s going to go a long way.”

Tong spoke about unemployment insurance benefits: the CARES Act, enacted to help with the economic fallout of COVID-19 that has seen nearly 40 million workers lose their jobs and apply for unemployment; and the Paycheck Protection Program , which are loans designed to provide a direct incentive for small businesses to retain their workers during the crisis.

“The Employment Guide to Surviving COVID-19: Critical Issues Today & Biggest Challenges Tomorrow” was sponsored by the ABA Tort Trial & Insurance Practice Section along with co-sponsors Business Litigation Committee and Employment & Labor Law Section. The webinar is available on demand for free for ABA members. Enjoy unlimited no-cost access to more than 575 widely accredited online programs and webinars. Additional COVID-19 programs are available for free.

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