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General counsel play a central role in coordinating a company's COVID-19 response. They are the center of many critical corporate activities from tracking regulatory standards and interacting with government officials to coordinating internal stakeholders to setting corporate policies and enabling corporate actions. An organization cannot respond well to COVID-19 without a GC who can clarify legal and regulatory uncertainty, balance competing interests and build consensus.

Over the past month, Gartner has hosted conversations with hundreds of GC and thousands of corporate executives. We found that executive focus has shifted from immediate COVID-19 response toward return-to-work decisions, maintaining trust with employees and stakeholders, and preparing the company for the new normal operating environment. From these conversations we've pulled six lessons for GC and legal department leaders.

• Create Return-to-Work Criteria

The most immediate decision for many corporate leaders is when to re-open workplaces that have been closed due to COVID-19. This is a group decision, involving the CEO, GC, head of HR, and other business leaders. The decision won't be easy. For organizations that operate in multiple states or countries, the guidance and regulations may require different standards or may even conflict. And the ability to work remotely effectively varies considerably by both business line and employee group.

GC must build consensus around the criteria for return. This means facilitating difficult strategic conversations with the executive team and board on how best to balance employee safety and perspective, company reputation, legal and compliance risk and long-term company survival. It also means reaching tactical consensus on what sources of health information and employee feedback to use. In an increasingly polarized environment, GC should remove as many points of contention as possible. This requires agreement on governing principles and sources of information.

• Establish Return-to-Work Project Team

While setting return-to-work criteria is difficult, the bigger investment for GC and executive leaders is often determining how to make these new practices work. This will require a working team with representatives from legal, HR, real estate, operations, IT, supply and business units.

A recent Gartner poll found that a majority of legal and compliance leaders would require social or physical distancing arrangements (95%), adequate PPE (79%), a visitor screening process (56%), and a temperature or other symptom check (52%) before return to work is possible. A minority of legal and compliance leaders would require other measures such as contact tracing, employee training, and employee health certificates. Some of these requirements would mean working with operations, supply chain and real estate partners, (e.g., physical distancing arrangements, PPE). Others present HR and privacy issues (e.g., temperature checks, location tracking, screening processes). Many of the decisions require legal review. For instance, if segmenting employees for staggered returns or shift, GC should make sure decisions are based on the type of work (not the characteristics of the workforce) and ensure that any changes made to the work environment are in accordance with the Americans with Disabilities Act, or other applicable employee laws

Many companies are codifying their approach with a return-to-work playbook. GC should work with HR and facilities/operations to create a playbook and effectively communicate with employees. Communications includes both on-premises signage (new procedures like temperature checks, reminders to stay distant) and general corporate messaging establishing timelines and expectations.

Finally, consider the employee journey to the workplace. Some employees will take mass transit. Others will drive to work and walk through a garage. Employees will have to enter the building and perhaps use an elevator. All of these are moments outside the direct control of an organization but that nevertheless shape the return-to-the-workplace experience for its employees. Before asking employees to return, leaders need to consider the emotional response to the entire employee journey. If the emotional response from employees is too negative, organizations will have trouble convincing employees it is safe to return, once workplaces are reopened. The employee perspective is an important input in corporate decision-making.

• Assign Regulatory Tracking Responsibility

Legal and compliance functions must track and operationalize rapidly changing regulatory information and local ordinances to support effective decision making. To accomplish this, many legal departments are cataloguing the jurisdictions in which they operate and assigning a reliable source of regulatory truth for each. The sources on the "reliable" list should be comprehensive, up-to-date, and authoritative.

GC then assign a legal point person to each jurisdiction and/or subject matter on which regulations need to be tracked (though the same person may own multiple terrains). This point person should identify changes in the relevant jurisdiction or subject matter, decide which function or business partner should oversee compliance, and determine whether the proposed compliance plan is enough. GC suggest working directly with regional VPs or other local "boots on the ground" to track relevant regulations and ordinances.

• Tap Your Professional Network

In uncertain, rapidly changing environments, GC need up-to-date information about changing conditions and emerging standards. The best GC actively use their personal and corporate networks to source information, identify resources and benchmark approaches. This means asking peers and trade associations about emerging return-to-work standards up and down the supply chain. It means asking law firms about the availability of resources, discounts and secondees that are often freely available. It also means less obvious partners. When negotiating with commercial property owners, you can secure both guidance and support in return-to-work decisions. In an environment of rapid change where few true experts exist, the intentional use of personal and corporate networks can go a long way.

• Practice Transparency with Employees and Other Stakeholders

Clarity is essential for keeping employees engaged during prolonged upheaval and to protect the business in the long term. The feelings of anxiety, frustration and burnout common during uncertainty are compounded now by isolation from colleagues and blurred work-life boundaries.

Leaving these emotions unattended can affect staff productivity and engagement, leading to errors, poorer quality and eventually influencing an organization's ability to survive in these difficult times. GC can help improve employee communications by making sure the company doesn't "sell" organizational changes but instead engages in two-way dialogue. Staff understanding is more important than employees liking the shift. Communications should also set very clear objectives for connecting employee efforts to corporate priorities.

When speaking with investors, GC should advise CEOs, CFOS and investor relations to avoid unnecessary fluff. The best communications acknowledge the headwind, clarify how it's impacting the business, and provide the updated guidance numbers. When responding to analyst questions related to COVID-19, address them directly but also underscore business opportunities beyond the time frame of the pandemic

While executives can't be fully transparent in all cases, defaulting toward transparency and explaining decision-making often builds goodwill.

• Position Legal for the New Normal

COVID-19 means rapid change to operating conditions and new business models. Legal departments must shift to meet the changing demand for legal services.

In the short term, GC should try to avoid budget cuts that sacrifice long-term legal capabilities or raise the long-term cost of legal services to the company. That means less across the board cuts, and more targeted assessments based on priorities. As such, more GC are focused on reducing costs by bringing more work in-house (57%) or increasing use of legal service providers (10%) than by freezing technology investments (33%) or reducing head count.

In the medium term, the focus is building legal department adaptability. Just as companies are actively reviewing and creating a range of scenario plans and operating models based on different conditions, GC should think through what each scenario means for the demand and delivery of legal services. The best legal departments will be prepared to efficiently switch its service model to accommodate different scenarios. That requires articulated plans for switching support based on the different corporate scenarios and a review of current legal department skills. In a recent Gartner poll, 64% of GC said the skill set of their legal department will need to change during 2020. And while a focus on training and hiring may seem unlikely in the current environment, now is an excellent time to accelerate shifts in legal hiring or technology investments.

 

Abbott Martin is a vice president of Research with Gartner's Legal and Compliance practice.