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New York Bar Advises That Firms Be Cautious About Reopening (1)

May 13, 2020, 5:59 PMUpdated: May 13, 2020, 10:41 PM

New York law firms should err on the side of caution in reopening their offices, bringing employees back only when needed and taking various steps to limit the risk of infection, the State Bar Association said in new guidance.

The bar group’s “model reopening plan” aims to help law firms get back to work as quickly as possible—while protecting their employees—as New York City and state continue to struggle with the devastating public health effects of the Covid-19 pandemic. Firms are advised not to rush to reopen, especially in the nation’s most populous city, which is both a coronavirus epicenter and a major Big Law hub.

The New York Bar’s working group recommends that, once law firm workforces are allowed to return to the office, they should only do so “as necessary,” and otherwise stay home. It’s still unclear in most regions of the state when law offices will be permitted to reopen. New York City will stay closed at least until June, state leaders said Monday.

“This is driven first and foremost, and in every way, by public health considerations,” said NYSBA President Hank Greenberg, an Albany, New York-based shareholder with Greenberg Traurig. At the same time, the guidelines, which he said are likely to be revised as facts on the ground change, were written with a practical understanding of how law offices function.

Once firms reopen, they should emphasize social distancing—meaning they need to prohibit in-person meetings in the office among attorneys and support staff “for at least a specified time,” the guidance said.

The Restarting the Economy Work Group guidance also urges firms to develop plans for testing employees for the virus, and implement “strict rules” regarding sick or at-risk personnel. That means enforcing quarantines when necessary, and requiring mandatory self-reporting and self-isolation regimes when workers are exposed to the virus.

The eight-member group includes Martin I. Kaminsky, Greenberg Traurig’s chief legal officer and general counsel, and David M. Schraver, of counsel at Nixon Peabody and past president of NYSBA.

‘New Normal’ Timeline

New York Gov. Andrew Cuomo’s (D) economic re-opening plan has rough-outlined when different parts of the state and different types of businesses can reopen.

New York City and its suburbs, still hard-hit by the virus, may be the last area in the state to begin returning to “new normal” work routines, Cuomo has said. The second phase of Cuomo’s reopening plan appears to include professional services companies like law firms.

Cuomo has said that reopening the state, region by region, depends on a range of broader health criteria regarding hospitalization and testing rates, and other Covid-19-related indicators.

Greenberg said the state bar guidelines should be seen as ways law firms should begin thinking about how to safely function on “Day One” of their restart—whenever that may be.

The working group also recommends that firms:

  • Encourage the use of technology for remote mediation, hearing, arguments, and depositions;
  • Urge employees to wear masks—both while at work and when traveling to and from the office;
  • Discourage the use of mass transit; and
  • Decide which workers will return to the office and encourage those who can continue to work effectively remotely to do so until the governor announces that the threat has sufficiently passed

Copiers and Refrigerators

The guidance for law firms seems to be in line with the steps being taken by professional services companies that are facing the same issues as they look to reenter shared workspaces, according to employment lawyers.

Advisories to work from home when necessary, and to take basic precautions like wearing masks in the office “is where everyone is moving to these days,” said Kate Bischoff, an employment law adviser in Minnesota.

Law firms aren’t the only types of companies now fretting about the risks involved when multiple employees will be touching the same objects, Bischoff said. She noted that the law firm guidance suggests restricting the use of office common-area equipment like refrigerators, office printers, and copiers, for example.

Employers and human resources departments are now asking themselves, “Do I get rid of the refrigerator? Do I get rid of the vending machine?” she said.

The New York task force guidance was especially helpful, because the issues it addresses are “going to be a larger part of working life going forward,” including for law firms, said Melissa Peters, special counsel with Littler Mendelson who focuses on workplace safety and health.

“What we’re suffering from is general lack of regulatory guidance,” said Peters. “In that absence, the bar seems to be filling the void.”

If and when firms decide to ask their lawyers and other staffers to return to the office, they’ll need to take extra precautions, said Jonathan Segal, a partner with Duane Morris’s employment, labor, benefits and immigration practice group.

Before firms ask their employees to return to the office, “they’ll need to consider to what degree you will allow attorneys/employees to continue to work at home, even if the firm opens up,” Segal said via email. Letting each partner make those decisions for groups within a firm “creates legal and cultural risks,” he said.

Firms also will need to determine how they’ll respond if someone refuses to return to work, Segal said. That may mean developing a process to consider potential accommodations for older workers and those with medical conditions that may make them vulnerable to infection.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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