Ed. note: This is the latest in a series on the changing practice of law in varied areas.
Imagine one day your phone lights up, your inbox is crammed, and it seems like every client you have is contacting you at the same time. That describes the situation for labor and employment attorneys at the beginning of the COVID-19 pandemic.
“On a typical day there is a random portion of my client base that reaches out to me for advice, even clients I didn’t plan to hear from that day,” said Nicholas M. Reiter, partner and co-chair of the labor and employment group at Venable LLP, resident in one the firm’s new York offices. “But when the COVID pandemic came every client reached out, every client needed advice, no one was immune to COVID. Everyone needed to make really big decisions.”
These decisions may have involved safety protocols in the workplace and the attendant liability concerns, furloughs, layoffs, and wage reductions, remote work, insurance coverage, and the navigation of federal programs. While these decisions certainly drew in other practice areas, employment attorneys were central.
“I don’t think anybody’s surprised that labor and employment attorneys were in higher demand as a result of the pandemic,” Reiter said. “We had a flurry of new laws and regulations issued at a fast pace at the federal, state, and local level. Our clients needed advice on these, and how to deal with others issues like shutting down offices and keeping up worker productivity. Those were fast paced times for everyone and now we’ve settled in.”
Perhaps first on many an employer’s mind was its obligation to its employees.
According to Gabrielle Wirth, a partner in the California and Montana offices of Dorsey & Whitney LLP, who has handled numerous employment disputes across the country, “an employer always has a common law duty to keep the workplace safe.”
Speaking at a recent webinar on pandemic related-liability hosted by her firm, Wirth noted that processes become extremely important for companies whose employees must work on site, especially if any of them have conditions that make them more susceptible to COVID. Employers may need guidance on how to reasonably accommodate people.
“The important thing for employers is they have to have the conversation, they have to take the steps,” Wirth said.
Reiter said the labor and employment group at his firm has been advising clients on the development of COVID safety protocols, from how employees should conduct themselves inside the workplace to something as granular as a questionnaire to assess risk.
“Most of our clients have a questionnaire, a certain number of questions that must be answered before someone can enter the workspace,” Reiter said. “For example, if people tested positive they shouldn’t be entering the workplace, or if they live with someone who tested positive.”
In developing these protocols, attorneys are often following guidelines from the federal Centers for Disease Control as well as state and local health departments. In the early days, the guidelines changed from day to day. For example, Reiter said the minimum number of quarantine days for someone who may have been in close contact with an infected person rose from 10 to 14.
“The pandemic is still less than a year old,” Reiter said. “The CDC and state and local departments are still evaluating best practices.”
Katie Pfeiffer, of counsel in the Minneapolis office of Dorsey & Whitney, also speaking at the webinar, said she would advise employer clients to have their employees sign off on written rules about steps to reduce or eliminate the risk of contamination.
“The best practice right now is to have temperature checks of employees if they’re on the premises,” Pfeiffer said. “It’s not that temperature checks are a sure thing, but they do help. There is a lot of evidence indicating that if you have a rise in temperature, the likelihood of an infection is greatly increased.”
Of course, no matter how much advice an employer may seek, there will be lawsuits.
“A labor and employment lawyer needs to be a good counselor and advise clients, but also be a good litigator,” Reiter said. A lawyer might help a client develop an employee handbook, or draft a confidentiality agreement. The same lawyer needs to know how to use those documents as exhibits during a trial.
“If a labor and employment attorney has the skills to do one, then they have the skills to do the other,” Reiter continued. “One benefits the other.”
Reiter said he’s been advising clients on unsafe working environment allegations during the pandemic, but he hasn’t seen an explosion in suits.
“There have been some cases where workers sued employers for injunctive relief, saying our employer is not doing enough, we would like a court order. What we haven’t seen — and what some people anticipated — is a lot of class action cases or similar cases related to actually contracting the virus, the reason being the difficulty of establishing causation.”
While he doesn’t know whether such cases will eventually heat up, “it’s reasonable to say we would have seen it by now.”
According to Shevon D.B. Rockett, a partner in the New York and Philadelphia offices of Dorsey & Whitney, also speaking at the COVID liability webinar, for a while it looked like a federal liability shield was going to be included with the most recently passed COVID relief.
“Ultimately that was not included, but many states have adopted their own liability shield, either through executive orders or through statutes or laws.”
The statutes have common characteristics that cover actual and potential exposure but don’t protect against willful or reckless or intentional conduct. “Other than that, state shields vary tremendously,” Rockett said, noting that a failure to substantially comply with public health guidance may preclude a business from gaining the benefit of a state’s liability shield.
Rockett’s colleague, Wirth, reported that there were a number of claims last March and April, “because many employers couldn’t get their hands on masks and other gear that they otherwise would have issued their employees. And so, you can also have a separate cause of action for failure to provide a safe environment.”
Wirth also noted that if employers fail to follow the state and federal regulations, a jury is going to be very sympathetic to an employee who brings a claim, or families who have lost loved ones or been severely harmed by COVID. Employment attorneys have to “keep in mind that the motivation behind a jury will be to punish people who didn’t act reasonably during this time.”
Reductions in Force
Aside from helping clients maintain a claim-proof safe workplace during a global pandemic, employment lawyers have also been busy helping clients avoid liability traps when it comes to terminations, layoffs and furloughs, and salary and wage reductions. Not a few employers have had to resort to these measures as the pandemic took its economic toll.
“Our clients were looking at ways to manage costs,” Reiter said. “There was no shortage of RIFs (reductions in force).”
One significant issue during the pandemic was the need to parse the unforeseen business circumstances exception to the Worker Adjustment and Retraining Notification Act, commonly called the WARN Act, a federal law designed to protect workers from sudden and unexpected losses of livelihood.
Whether the WARN Act applies will depend on the size of the RIF and the size of employer, Reiter said. “If an employer has to conduct a reduction that would otherwise trigger a WARN Act notice,” Reiter said, “the notice period can be shortened if COVID is the trigger.”
Wirth reported that conflicting signals from the federal government didn’t make it any easier. “They left employers totally confused by the various announcements. . . . Of course, in the beginning of the pandemic, employers sometimes had to do things hastily, which created problems.”
The method used to select employees to be laid off or furloughed is another potential minefield that has had companies seeking legal advice.
“You have to make sure there’s no disparate treatment. That’s an issue,” Reiter said, referring to a type of discrimination claim—an allegation that an employer intentionally selected someone because of their characteristics, a violation of the law if that person is part of a protected group.
Disparate impact is another type of discrimination claim, “when a disproportionate number of a particular protected class was selected for a reduction in force,” Reiter explained.
Sometimes these claims can arise even when a company is trying to keep its employee’s safe. For instance, “some employers, very rightfully from a moral standpoint, worried about their older workers or workers who were obviously disabled, that they would be more susceptible,” Wirth said. “But you can’t treat people differently because of their disability or their age.”
She emphasized that any action an employer takes must be an interactive process, not a blanket rule. Companies need to be very careful about taking personnel actions that could lead to discrimination claims.
Employers have so much to consider that it’s no wonder that employment attorneys have been on the frontlines of pandemic legal work.
As noted by Wirth, companies have had to evaluate their procedures, look at their risks, and stay abreast of what has been coming out of various governmental entities. In other words, good legal advice has been crucial.
“Unprecedented” is sponsored by Practising Law Institute, which features a variety of timely offerings on employment law topics. These include the programs Understanding Employment Law 2021 and Employment Discrimination Law & Litigation 2021, as well as the publications “COVID-19 and Other Pandemics: Business and Legal Challenges” and “Employment Law Yearbook 2020.”
Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.