Re-Opening After COVID-19: A Tall Order for Law Firms

By Esquire Deposition Solutions | June 10, 2020

With stay-at-home orders expiring across most of the United States, law firms are confronting for the first time the challenge of opening their physical offices in a manner that is safe for clients and employees, as well as in compliance with public health orders issued in the states and cities where they practice.

It is a tall order.

Each law firm will have to decide, as a preliminary matter, whether, and to what extent, it will need physical office space in the future. Few lawyers or courts reported significant problems conducting legal business virtually during the first few months of the COVID-19 epidemic. There is a strong sense within the legal community that the practice of law has changed for the better and for good.

Law firms that decide to re-establish business at their former premises have a lot of work to do. They must implement new rules on social distancing and access to office premises by clients and other visitors. New office supplies will need to be purchased, along with personal protective items designed to prevent the spread of the virus. And law firm management will have to establish new policies setting out which staffers will be allowed to return to work, which staffers must return to work, and under what conditions.

In a recent survey by Gartner Inc., general counsel and law firm managers identified the following measures as the most important preconditions for returning staff to physical offices:

  • Social or physical distancing arrangements (95 percent)
  • Adequate personal protective equipment (79 percent)
  • Return to work safely plan (58 percent)
  • Visitor screening processes (56 percent)
  • Temperature or other symptom check procedures (52 percent)

Survey respondents also mentioned contact tracing efforts, coronavirus antibody testing, and employee health certificates as being necessary before employees could safely be returned to office premises. Four percent said that remote work will be made permanent in their organization.

COVID-19 Compliance: Federal and State Laws

Reopening law firms must account for federal, state, and in some cases, local laws—a patchwork of new and pre-existing measures—when formulating a plan for returning their staff to office premises. 

Like any other business, law firms are obliged to follow federal workplace health and safety laws. Although the federal government did not create new COVID-19-related mandates for business, several agencies issued detailed guidance explaining how existing federal laws applied to workplaces as a result of COVID-19.   

The Centers for Disease Control and Prevention published Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, and the Occupational Safety and Health Administration issued Guidance on Preparing Workplaces for COVID-19 (PDF). The OSHA guidance describes existing health and safety regulations that are already binding on employers, and it makes recommendations on how employers can comply when bringing employees back to the office during the COVID-19 epidemic. These documents will guide every law firm’s reopening plan.

Though not a workplace safety matter, law firms that received loans under the Paycheck Protection Program must adhere to a complicated set of rules in order to remain eligible for loan forgiveness. The rules in this area changed recently, with President Trump signing legislation on June 5 that gives employers additional time—until December 31, 2020—to rehire laid-off workers. It’s possible that the rules governing PPP loans will change yet again before the end of the year.

At the state level, all 50 states plus the District of Columbia have issued health and safety guidance for businesses reopening after the expiration of state stay-at-home mandates. While some state orders are merely advisory, others have the force of law and carry penalties for noncompliance. For example, in Michigan, Executive Order 2020-97 creates a prescriptive legal framework for reopening businesses, requiring, among other things, that businesses provide COVID-19-related training to all employees.

The Council of State Governments has assembled a 50-state list of executive orders relating to the reopening of businesses.

Enter State Bar Associations

Fortunately, many state bar associations have recently synthesized the numerous COVID-19-related legal obligations into detailed guidelines for law firms within their jurisdictions. In most cases, these groups boiled the law down to an actionable guide for reopening. The remainder of this article summarizes their advice.

  1. Designate an Office Reopening Team.

Create a team responsible for developing and overseeing implementation of the firm’s re-opening plan. Designate this team as the group responsible for researching and complying with federal and state laws governing workplace issues arising from COVID-19.

  1. Create a Written Plan to Manage COVID-19 Risks.

Reduce the firm’s COVID-19 response plan to writing and distribute it to all employees and clients. Be sure to include in the plan rules on employee testing for the coronavirus, as well as rules for office visits by clients, attorneys, vendors, and other visitors. Consider the impact of medical privacy and civil rights laws on the firm’s decision to test for coronavirus and act upon the results of that testing.

Select a single source of information from within the office reopening team to regularly communicate office policies and COVID-19-related news to staff. Take steps to ensure that communication is two-way, not strictly top-down.

  1. Build a COVID-19-Aware Law Office. 

Assess physical space needs in light of COVID-19-related compliance obligations. If the firm leases office space, find out what plans the landlord has for cleaning the premises and controlling access to common areas of the building.

Consider the need and budget for additional expenditures on increased cleaning activities, cleaning supplies, re-configured office layouts, new technology, and hand sanitizer and other personal protective equipment.

Provide personal protective equipment for every employee and hand sanitizer at every workstation. Minimize or eliminate the use of shared office equipment such as copiers and postage machines. 

Consider closing office break rooms. Remove chairs from reception areas. Install signs reminding staff and visitors of the firm’s social distancing and hygiene guidelines.

Maintain detailed office attendance records to aid contact tracing.

  1. Prepare Staff for Resumed In-Office Work.

Speak with attorneys and staffers individually and determine whether it is possible for them to return to work. Address any special issues that may arise if the employee has children at home without school or daycare, or if the employee is reticent to return to work for fear of contracting COVID-19.

Assess which employees should be required to return to the office and which types of work must be done in the office. When returning employees to the office, do so gradually on a staggered schedule, rather than returning numerous employees all at once.

Use CDC guidelines to train employees on self-screening for COVID-19. Emphasize with employees the importance of not coming to office premises if they have COVID-19 symptoms, or if they — or someone they live with — have been diagnosed with COVID-19.

  1. Minimize the Risk of Spreading Infection.

Persons who can continue to effectively work remotely should be encouraged to do so. Stagger workday hours for on-premises office staff. 

Encourage the use of technology for remote mediations, hearings, and depositions.

Discourage travel by mass transit. If mass transit is unavoidable, educate employees on best practices for minimizing risk of infection during their commute.

If practical, require office staff to wear protective masks while on office premises. Insist on social distancing on office premises and encourage the use of videoconferencing and other virtual meeting technologies — even when all parties involved are on the same premises.

Minimize business travel to the maximum extent possible. Employees returning from business travel should be required to self-isolate upon their return.

Minimize office deliveries. Encourage office staff to bring their own meals to work.

Require regular hand-washing, with soap and other cleaning supplies provided by the law firm.

In all of this, law firms should understand that the reopening process will be a new experience for everyone and possibly a traumatic experience for some. Each firm’s needs will necessarily be different, depending on the nature of their law practice, the unique capabilities of their staff, and the myriad jurisdiction-specific regulations guiding the reopening process.

Selected State Bar Resources for Law Firms

Posted in Navigate Litigation 2.0 and tagged