The coronavirus is a public health crisis the likes of which attorneys, law firms and businesses have never faced before.
Naturally, lawyers want to do everything they can to protect themselves, their loved ones, friends, colleagues and clients. Firms have already braced for sick or quarantined staff members who will be unable to work for extended periods. Many have scrambled to update their telecommuting policies and come up with emergency procedures.
But that is not enough. Experts advise putting strong procedures and guidelines in place to help firms and their employees avoid significant disruption to business operations. These include continuity plans and policies on sick leave and work-from-home that minimize the cybersecurity risks.
The Centers for Disease Control and Prevention advises businesses to have a continuity plan.
“Some companies call the plan an emergency management plan and others call it a crisis plan,” said Ronald J. Levine of Herrick, Feinstein in New York City. “These plans were strongly recommended after September 11th, and were revisited after natural disasters, such as Superstorm Sandy. These plans become essential when faced with a worldwide health crisis.”
Levine recommends that employers select a coordinator and a team with clear roles and responsibilities consisting of an executive and representatives from communications, legal, human resources and risk management.
Meet regularly with an agenda throughout the ongoing crisis and have an action plan after every meeting. The team’s members should be empowered to make decisions quickly, Levine said. Also decide who would take over if the team leader or others become ill.
Educate the team concerning potential legal challenges that could arise during the crisis, including employment, privacy and discrimination issues, Levine said. Review existing policies to make sure everyone on the team is familiar with them. Problems can arise when a team member provides incorrect guidance.
Maintain current phone and email contact information for all employees. Identify essential business functions and make sure there is a staff member who can serve as a backup if the primary staffer becomes sick.
Elizabeth E. Schlissel, of Tannenbaum Helpern Syracuse & Hirschtritt in New York City, said employers have an obligation to maintain a safe work environment for their employees. As such, law firm offices that remain open need to advise workers to stay home if they are sick, immediately send home employees who become ill, and bar employees from returning to work until their fever has subsided for at least 24 hours without the use of fever-reducing medicine. Schlissel noted that the New York City Department of Health, in light of coronavirus, is advising employers to extend the fever-free period to 72 hours before returning to work.
Additionally, Schlissel said if an employee, or a member of the household, returns from visiting one of the CDC listed high-risk countries, the employee should not be permitted to return to the workplace for 14 days. If the employee is symptom free for two weeks, then the employee may be permitted to return to the workplace.
Wipe down commonly touched surfaces throughout the building, reconsider the use of some common areas, and eliminate having food out for all employees, Schlissel advised.
If an employee has a confirmed case of COVID-19, the firm will need to again take steps to maintain a safe work environment by hiring a company to clean and sanitize the office before allowing the other healthy employees to return to the office.
Schlissel also explained that employees have a reasonable expectation of privacy under the Americans with Disabilities Act, so businesses should not identify any employee with suspected or confirmed diagnosis of COVID-19. However, the employer must still inform employees that they may have been exposed to a colleague who is suspected of or confirmed to have the virus.
Levine said it is “critically important” to review and revisit all personnel policies concerning sick leave and other absences.
“These policies need to be in line with employment and safety laws and regulations,” Levine said. “The policies may be permanent policies, or only temporary policies. And, if existing policies are being changed, let employees know which have been changed.”
Because the illness or quarantines typically last two weeks, it is likely employees will exhaust their paid time off. Generally, if an exempt employee works any part of a week, they should be paid for the full week. For example, if an exempt employee works Monday through Wednesday, and is then out sick the remainder of the week, the employee should be paid for the full week. However, if the exempt employee is absent for a full week and has exhausted their paid time off, then the employer is not required to pay the employee for that week. In a similar scenario, Schlissel said a nonexempt employee is generally only entitled to be paid for time worked.
Further, if an employer wants to pay its employees who are out for coronavirus-related reasons, Schlissel said they should be consistent and allow the additional paid leave for all its employees. Schlissel advises that leave policies be administered in a non-discriminatory manner.
“I would advise against picking and choosing which employees are allowed to take additional paid time off.” Schlissel said.
Telecommuting and Cybersecurity
As more firms implement remote working policies, Levine explained that personnel will need to have the proper equipment and connections to work from home. Also, the firms’ system must be able to accommodate that. He advises firms to test these systems as most companies have not had to deal with large numbers of employees logging on remotely at the same time.
“In 2009, the EEOC (Equal Employment Opportunity Commission) recognized that telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation,” Levine said. “So telework has been on the radar screen for quite a while. Employers are supposed to be prepared for telework, even without the current threats.”
Levine said the IT team must also be readily accessible and prepared to walk employees through the challenges of working remotely. Work-from-home setups are also more susceptible to hackers, Levine explained. He said firms must be especially vigilant to make sure that employees will maintain the security of the system.
NYSBA’s Technology and the Legal Profession Committee recently issued a cybersecurity tips alert for working securely from home.
The committee’s tips include:
- Installing a Virtual Private Network, or VPN and making sure employees know how to use it
- Consider providing attorneys with the ability to conduct telephone and video conferences from home.
- Prepare attorneys and staff for telecommuting by making sure they have the appropriate equipment, know how to access office voicemail and are warned against using public Wi-Fi or home Wi-Fi that lacks strong password protections.
- When reviewing or creating your firm’s written business continuity plan, consider whether your firm has appropriate cybersecurity insurance, including for social engineering and enough coverage.