This too shall pass. The first round of vaccinations to Covid-19 currently rolling out, bringing with them a cautious optimism among the legal community, and the public at large, that things may in the foreseeable future return to the way they were a year ago. However even the most bullish recognize the respiratory disease that caused a global pandemic is not going anywhere anytime soon.
Fortunately, we have substantial information regarding the best practices to curb the spread of Covid-19 previously unknown at the onset of the pandemic. This includes guidelines issued by the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”) and the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (“CDC”) regarding how to combat the spread of Covid-19 regarding the workplace.
OSHA and the CDC developed this guidance based on traditional infection prevention and industrial hygiene practices. This article provides a breakdown of these guidelines including the implementation of administrative and work practice controls as they relate to unique structure of law firms.[1] This guidance is advisory in nature and informational in content and does not create or alter legal obligations created by the Occupational Safety and Health Act.[2]
Infection with Covid-19[3] can result in illnesses ranging from mild to severe, even fatal, while a portion of infected individuals are asymptomatic carriers of the disease. According to the CDC, Covid-19 symptoms may appear within forty-eight hours to fourteen days following exposure. One of the most problematic features of the virus in and out of the workplace is its potential for widespread person-to-person outbreaks.
As vaccinations are in their infancy, outbreaks within the workplace remain a prime concern for employers and employees. The virus is spread primarily person-to-person, generally through respiratory droplets emitted from an infected individual to another individual in close contact. While many firms have switched to working remotely, the contagious nature of Covid-19 may nevertheless result in absenteeism and not simply involving employees missing work because they are sick or are afraid of becoming sick.
Employees and co-workers may also be absent to care for sick family members or to serve as caregivers for children with modified school hours. OSHA also recognizes changes in patterns of commerce and interrupted supply/delivery. As of the drafting of this article, the CDC reports nearly twenty-three million cases in the U.S.[4] No doubt your firm has experienced these issues, particularly absenteeism, as a result of the pandemic.
Law firms are in the service industry. The typical day involves constant interfacing between lawyers, clients, and staff. Many of these individuals are considered high risk merely due to their age, 65 or older, or due to underlying medical conditions. Employers must take care to reduce employees’ risks of exposure while maintaining compliance with the relevant Age Discrimination in Employment Act and Americans with Disabilities Act regulations.[5]
OSHA differentiates workplaces subject to medium exposure risk and low exposure risk by the frequency of close contact between individuals. Medium exposure risk jobs include: require frequent contact with people who may be infected, while lower exposure risk has minimal occupational close contact with coworkers and the general public. While law firms could fall into the former, they could certainly transition to the latter.
To accomplish this working remotely should be highly encouraged and made available to all attorneys and staff. Other OSHA options to minimize close contact with employees and clients are flexible work hours, for example staggering shifts at the office and restricting the number of personnel from entering the office. OSHA also recommends encouraging respiratory etiquette, including covering coughs and sneezes, routinely cleaning and disinfecting surfaces, and frequent, thorough hand washing. Most importantly, OSHA recommends encouraging employees to self-monitor for signs and symptoms of Covid-19, particularly if they suspect possible exposure, and to stay at home if they are sick.
Limiting travel is another recommendation of OSHA and the CDC. Fortunately, virtual conferencing platforms such as Zoom make taking depositions for out of town witnesses and attending hearings easy and, in many instances, preferable. Lawyers save time commuting to the courthouse or to an out of town deposition, and clients save on those travel costs. Indeed, these cost-effective virtual options will likely be here to stay long after the pandemic.
The virtual interfacing technology firms are using to comply with OSHA and CDC distancing protocols also has value in terms of recruiting recent law school graduates. Many firms have reduced or eliminated their summer associates programs, making it more challenging to identify talent in the pool of recent law school graduates. As with virtual hearings and depositions, the best practice is to lean into remote networking. Firms that take the time to virtually network with prospective new hires, like panning for gold, will increase their chances of bringing in productive new attorneys.
OSHA advises lawyers living abroad or traveling internationally on business to monitor the latest CDC travel warnings[6] and U.S. Department of State (“DOS”) travel advisories.[7] Employers should communicate with lawyers living or traveling internationally that the DOS cannot provide Americans with medications or supplies, even in the event of a Covid-19 outbreak. Additionally, as the pandemic conditions evolve, travel into or out of a country may not be possible, safe, or medically advisable. Foreign governments may respond to an outbreak with restrictions that limit the U.S. government’s ability to assist Americans in these foreign countries. Such restrictions could occur rapidly, making it paramount that international lawyers and their firms plan appropriately.
OSHA provides several programs and services to help law firms improve their health and safety. These include an on-site consultation program that offers no cost, confidential advice to small and medium-sized businesses.[8] OSHA also assists in establishing safety and health systems in the workplace that can substantially reduce the risk of a Covid-19 outbreak, in addition to other workplace illnesses and injuries.[9]
While we await to see whether the end is in sight, OSHA and the CDC have provided guidelines to assist law firms and other businesses in maintaining healthy, safe business operations while reducing the risk of Covid-19. Firms should zealously apply these guidelines in order to minimize their risk exposure and mitigate any outbreaks that do occur. These social distancing measures, specifically the implementation of a virtual component to the practice of law, have created some efficiencies that will likely remain in place after the pandemic subsides. Until, and potentially even after, that time firms should apply practices to ensure they remain a low exposure risk work environment.
Francis is a native Houstonian with proven courtroom experience in both civil and criminal courts. Francis routinely represents general contractors, subcontractors, manufacturers, developers, insurance companies, owners and individuals in complex litigation, insurance defense, and worksite accidents. Known for his “straight talk” communication style, Francis is a strategic legal advisor to his clients that prioritizes their business objectives.
Francis has drafted and successfully argued countless motions and taken numerous depositions. He has also obtained successful trial verdicts for his clients, both as a first chair and second chair attorney.
