In Pandemic Response, ‘Long-Term View’ Is Essential for General Counsel

October 28, 2020

As concerns related to the pandemic and social unrest grow, corporations face greater pressure to address worker safety – as well as discrimination, health care, and unemployment insurance protections.

[Help your company navigate the ongoing impacts of Covid-19. Our special report offers practical guidance, analysis, and sample policies.]

In this environment, businesses should “take a long-term view,” said Doug Hass, associate general counsel and assistant secretary of Kimball Electronics. As an example, relationships with employees should be viewed as equally important as those with customers, Kimball said. Flexible work schedules for child care, caregiving, and medical leave all strengthen employee goodwill, Kimball added.

Long-term thinking was a key point of discussion during the second day of Bloomberg Law’s virtual In-House Forum, “Leading Corporate Legal Departments in Times of Crisis.” Yet many experts also voiced caution.

[For more news, insights, and guidance related to the coronavirus pandemic, visit Essential Covid-19 Resources for Attorneys, Vaccine Policy Guide for Employers, Returning to Work and Vaccine Mandates, and Disability Discrimination Laws by State.]

“You can have very good intentions and make all sorts of deviations from policy – and it’s going to come back to bite [you],” said Ron Peppe, executive vice president of legal and human resources for Canam Steel Corporation.

The risk of legal exposure is particularly high in industries where remote work is not always possible. With that in mind, general counsel discussed legal minefields to consider now to mitigate legal exposure later. For example, while thermal scanning cameras can quickly flag assembly line employees for fever, the technology also contains “what is arguably biometric information,” Peppe said.

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In a panel discussion moderated by Bloomberg Law Senior Legal Analyst Dori Goldstein, Peppe said companies must assess whether thermal-scanning technology – however expedient in the short term – conflicts with state privacy laws, such as Illinois’ Biometric Information Privacy Act, in the long run.

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Similarly, legal departments must assess response to employees requesting mask exemptions based on health or religious objections. Some workers “sincerely hold religious beliefs not to wear a mask,” said Sonya Richburg, Labor and Employment Counsel for Coca-Cola Consolidated. Other times, workers may view masks as a physical burden, especially if they’re already wearing other protective equipment, such as welding shields, Peppe said.

To address mask resistance, businesses should frame the mandate as just another safety requirement, in line with state and local ordinances, Richburg said. Businesses should also be open to dialogue. It’s important to “engage in [an] interactive process to make sure everyone feels safe,” Richburg said.

Ride-hailing giant Uber has taken a similar approach. Beyond mask verification of riders and drivers, app tools developed by the company focus on safety tips. The intent is “not to penalize but help educate,” said Tony West, chief legal officer of San Francisco-based Uber, speaking one on one with Bloomberg Industry Group’s editor-in-chief, Cesca Antonelli.

In a separate conversation with Antonelli, California’s attorney general, Xavier Becerra, discussed Proposition 22, “Protect App-Based Drivers and Services Act,” a closely watched state ballot proposal. Becerra sees the proposal as a means to “no longer provide paid sick leave, overtime pay, minimum wage, unemployment insurance, Social Security tax payments by treating [workers] as independent contractors.”

However, West of Uber maintains the initiative would create a third employment classification that allows gig workers “not only to meet an earning standard,” he said, “but also to [receive] benefits like health care.”

Beyond watching California, given its status as a harbinger of similar legislative efforts nationwide, panelists discussed other thorny matters ahead. These include the legality of mandatory vaccinations.

“While intuitively we say, ‘It’s hard to force somebody to do something,’ I’ve yet to come up with a good reason [for accommodating a non-vaccination], short of a state mandate that says we can’t require it as a condition of employment,” Peppe said.

Yet panelists also advised caution in following legislators, specifically in terms of diversity and inclusion efforts – another paramount discussion this year, alongside the pandemic.

[For more insights from legal experts on handling Covid-19 in the workplace, read the recap from day one of our virtual In-House Forum, “Leading Corporate Legal Departments in Times of Crisis.”]

While the current administration has banned diversity and inclusion training it deems “divisive,” companies cannot forget the “S” in their environmental, social, and corporate governance (ESG) reports, Hass stated.

Businesses walk a fine line. “Every time we have a change of party in control, we adapt, and we find a way to work within what the law says,” Peppe said.

Still, some discomfort is unavoidable, experts said. “We’re going to have to get comfortable with being uncomfortable,” Richburg said, adding diversity discussions “make [the] organization better.”

As the pandemic enters a new year, companies will have to seek balance as best they can. “We have to be flexible,” Peppe said, yet “consistency is how you avoid litigation.”

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