3 Questions Employers Are Asking Lawyers About Reopening in the Virus Era
The client demand for fast, accurate information in a time of immense change and uncertainty is unending, management-side labor and employment lawyers tell ALM. Here are three areas clients have a lot of questions about.
May 22, 2020 at 07:26 PM
4 minute read
Being an employment lawyer during the COVID-19 pandemic has been a 24/7 job filled with emails, calls, client alerts, guidance and policy drafts, webinars, blog updates, podcasts and almost constant refreshing of government regulators' web pages.
Clients' thirst for fast, accurate information in a time of immense change and uncertainty is unending, those in the practice report.
"Sometimes we're literally reading the new regs as they're coming out," said Sue Stott, a partner in Perkins Coie's labor and employment law practice in San Francisco.
The Recorder talked to three employment law experts to find out what companies are asking as they prepare to reopen their doors after months of physical closures. Many employers' questions have been industry- or location-specific. Is it safe for my workers to travel? How do I handle disruptions in my supply chain? What should our policy on masks be?
There were some common themes among the questions, however. Here are a few the lawyers mentioned.
|What is everybody else doing?
Company leaders have a lot of questions about when—or whether—competitors or others in the industry are reopening.
The answer, lawyers say, often depends on where that company is located, whether they've been deemed "essential" and whether employees are getting the work done at home.
"In Texas, for example, we've already helped some clients return to the workplace this week," said Julie Totten, leader of Orrick, Herrington & Sutcliffe's employment law and litigation practice group. "In California, offices in different cities are each handling that differently."
That information isn't always easily available, with people working out of the office and the constant churn of changes.
"There were weeks where it seemed every day we were advising on working from home, furloughs and finally, layoffs," Stott said.
|How do we prepare the workplace for employees to return?
"We're talking a lot about workplace redesign—physical plant issues, using directional signage so people are not crossing each other's paths in hallways, where to stand and where to go. Ventilation is another issue, as is cleaning and sanitizing," said Kate Gold, a partner in Proskauer Rose's labor and employment law department in Los Angeles.
Of course, answering that question also requires a handle on ever-changing rules and guidance from the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, labor regulators and state and local health officials. And lawyers have to advise clients on the difference between orders and recommendations.
California, for instance, has five "must dos" for facilities looking to reopen: create a site-specific protection plan; train employees on COVID-19 safety; implement control measures and screenings; create disinfection protocols; and set physical distancing guidelines.
"We recommend that [clients] follow the most restrictive rules and guidance," Totten said.
|Can we scan employees' temperatures? Can we track and trace our workers' exposure to COVID-19?
The U.S. Equal Employment Opportunity Commission allows employers to take workers' temperatures during the COVID-19 pandemic. But "it's not as logistically simple as you may think," Gold said.
Employers have to be careful to limit who collects and sees employees' health information, lawyers said. Apps add a new dimension of privacy concerns. Then there's the issue of tracking the contacts of workers who show symptoms or test positive for COVID-19.
Voluntary contact tracing is probably OK, Totten said, but mandatory tracking needs a much closer legal examination that implicates the American with Disabilities Act, the Health Insurance Portability and Accountability Act and the California Consumer Privacy Act.
"You really need to understand what is happening with that data," Totten said. "We think the employer should probably not be the direct recipient of that data."
Stott agreed that employer-based track-and-tracing "is a brave new world."
"It should be done by professionals," she said. "The professionals, at least the ones we've seen, are government agencies that might engage professional consultants. But it's probably not something companies should engage in on their own."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllA Look at Big Law Partner Donors to Trump and Harris in California
Wilson Sonsini Hit With Disability Discrimination Suit by Ex-Assistant
Big Law Lawyers Fan Out for Election Day Volunteering in Call Centers and Litigation
7 minute readBaker McKenzie, Ex-Client Embroiled In Litigation Over Retainer Agreement Breach
Trending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Election 2024: Nationwide Judicial Races and Ballot Measures to Watch
- 3Guarantees Are Back, Whether Law Firms Want to Talk About Them or Not
- 4How I Made Practice Group Chair: 'If You Love What You Do and Put the Time and Effort Into It, You Will Excel,' Says Lisa Saul of Forde & O'Meara
- 5Abbott, Mead Johnson Win Defense Verdict Over Preemie Infant Formula
- 6How Much Does the Frequency of Retirement Withdrawals Matter?
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250