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ANALYSIS: In-House Attorneys Adapt as Covid Risks Shift

Nov. 16, 2020, 11:17 AM

Open floor plans are more conducive to contagion than productivity, and conversations about whose work is essential have been elevated to cultural discourse. As in-house counsel prepare to flip the calendar to 2021 they are flipping their mindset as well: from emergency response to the longer-term realities of a recession in a pandemic along with a flood of new federal, state, and local requirements to comply with.

Crisis responses to the onset of Covid-19 simultaneously, if not intentionally, sidelined many structural workers-rights safeguards and changed the calculus of corporate risk assessment. Many issues that have material impacts on compliance, budgets, and profit margins have only gotten more complicated. Legal and regulatory compliance issues popping up on the radar may include preparing for a wave of wage and hour lawsuits, understanding public health best practices, and managing corporate policy changes.

Remote Work

Businesses that are primarily office-based have absorbed and adapted to a sea change in perceptions of remote work; what was once considered a headache for management has become the savior of productivity and businesses continuity. Remote work has been so widely embraced and so successful that some businesses have decided to make it permanent.

But before companies could settle into their newly dispersed patterns, the abrupt shift to remote work left many businesses vulnerable to wage and hour complaints. Even with the best policies, the realities of life during a pandemic make tracking employees’ time difficult. Adjustments to working time to balance child care responsibilities or manage limited resources within the home aren’t generally accompanied by glances at a clock. Employer attempts to offer flexibility can feel like subtle pressure to work more, leading to claims of unpaid wages or overtime. And small changes in employee job duties — even if intended to keep a worker employed — can throw worker classifications into doubt, making workers who were once exempt from overtime pay suddenly considered nonexempt workers.

Telework during state-mandated restrictions on business operations was treated by many employers as an obvious solution; risk would have arisen from requiring employees to show up for work if they were not in positions exempt from emergency orders. But the Covid-19 pandemic could become endemic, and state governments could address ongoing fluctuations in new cases and infection rates by responsively tightening and easing rules. A company switching expectations for its workforce will create new risk for itself.

A future of full-time telework isn’t necessarily a risk-free choice, however. The slow creep for many continuously employed and formerly office-based workers from “working from home” to “living at work” has pulled into sharp relief questions about what exactly qualifies as a home office. Kitchen seating and laptop screens don’t compare to ergonomic office chairs and dual-monitor setups.

On-Site Workforce

Employers of on-site workforces face their own legal hurdles, even if in-house counsel have had to become experts at operationalizing a slew of Covid-19-related stateandlocal training and safety laws that require new policies and procedures.

Some issues are likely to bubble up. Take wage-and-hour: The law isn’t exactly clear on whether employees must be paid for the time spent in Covid screening, for example.

Also, expect a spike in workers’ compensation claims due to at-work infections, in part because states are making it easier for infected workers to collect benefits.

But that isn’t the whole story, and employer liability doesn’t stop with workers’ compensation, as many assumed it would. Employers are starting to face public nuisance claims and suits from infected workers’ friends and families. These lawsuits are likely to clash with state efforts to shield employers from liability.

Safety concerns during the pandemic go beyond infection. Employers have been struggling to fill on-site jobs since the start of the pandemic, leaving many businesses understaffed and over-worked. Especially in industries that produce products categorized as essential, the pressure on workers to produce can be intense, creating a climate that is ripe for safety issues. While the Occupational Health and Safety Administration hasn’t engaged in much enforcement activity relating to the pandemic so far, there are signs that a Biden administration will change tacks.

Lawyering a Company Through a Crisis

Corporate counsel have watched the pandemic and recession dramatically change the businesses they represent and assail the workforces they monitor with multifaceted stressors — indeed, perhaps the biggest challenge facing in-house counsel in 2021 is a stressed, scared, angry, and burned-out workforce. Statistics tell a story of legal tech-supported efficiency improvements since spring 2019, as well as an exodus out of the legal profession, a combination cementing a goal to do more with fewer person-hours.

Existing laws governing worker privacy will become more difficult to navigate as states move toward regulation and employers move toward bringing employees back to their worksites. State laws and federal regulations will force businesses to reexamine how they classify independent contractors. New state laws will give workers rights, while others will protect businesses from liability. President Trump’s executive order will force federal contractors to reexamine their nondiscrimination and harassment training. And, finally, if all goes well in the global heath community, businesses will have to spend a good amount of time figuring out if they can or should offer vaccines to their workforce.

An in-house lawyer may look at any set of specific guidelines — for instance, a state emergency order reinstatement or a comparison of employee training rules in the handful of states where the company operates — but shouldn’t fail to consider entirely new solutions for the workplace of the ‘20s.

Access additional analyses from our Bloomberg Law 2021 series here, including pieces covering trends in Litigation, Transactions & Markets, the Future of the Legal Industry, and ESG.

Bloomberg Law subscribers can find related content on our In Focus: Coronavirus (Covid-19) page.

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