The chief legal officer's role in transition to the workplace

There are several sources that offer guidance for returning employees to the workplace. These include federal, state, and local sources and recommendations from health care professionals which may be relevant to your geography and industry.

• The White House and US Centers for Disease Control and Prevention’s (CDC) Guidelines for Opening Up America Again

• Applicable state, county, and city schedules and guidance—being mindful that rules may differ significantly by jurisdiction

• Guidance propounded by the CDC, the Occupational Safety and Health Administration (OSHA), and other applicable agencies

• Industry-specific guidance by OSHA (package delivery workforce, manufacturing industry, and retail workers) and other applicable agencies

• Industry group and/or third-party guidance (for example, National Retail Federation, National Restaurant Association, or US Chamber of Commerce)

The CLO is uniquely positioned to understand these varied and complex regulatory frameworks and to help inform the conversation relevant to risk related to potential outcomes. You can take the lead in helping your organization clearly articulate its risk profile and making related decisions. Consider:

• Tools to inform strategic decisions: the Reopen the Workplace Navigator tool from Deloitte, economic scenarios, and the government response portal for up-to-date laws in more than 100 countries

Many individual state orders mandate that telecommuting should continue for roles that have demonstrated success doing so during the stay-at-home period. Thus, a determination of which functions must be performed at the workplace will be helpful. As CLO, you should encourage the enterprise to document job functions that have not successfully been performed from home during stay-at-home orders for use in determining which employees and jobs must return to the workplace. The reasons why particular roles must be performed in the office should likewise be documented.

It is likely that your workforce will fall into one of two categories, although several combinations of pieces of these two categories are also possible.

For the portion of your workforce that will work entirely or partially from home, you may want to consider training related to cybersecurity and leading remote teams. For employees both within your legal department and the larger enterprise, carefully consider immigration, labor, and employment ramifications of remote work arrangements.

Cybersecurity and data protection

1. Common challenges:

• Increases in socially engineered cyberattacks targeting financial and personally identifiable information (PII) data

• Cyber risk levels are elevated due to an increase in phishing and malware attacks

• Some communication and collaboration tools may not be secure, even where these platforms have their own built-in controls

• Client and customer data may be more vulnerable when employees work from home if employees are transmitting data on unsecure networks and/or saving or printing on home devices

• Employees who previously did not work at home may not be familiar with cybersecurity and data protection leading practices. Most are likely to benefit from regular reminders related to cybersecurity leading practices

• Potential threats to attorney-client privilege may arise where there are risks to cybersecurity or where attorney-client conversations may be overheard (by family members, for example)

2. Responses:

• Roll out or reoffer cybersecurity training to employees, including training and guidance on how to best leverage controls for the various communication and collaboration tools they use. Repeat and reinforce training as often as necessary.

• Communicate new and emerging threats as they arise to legal and throughout the enterprise. Provide remote working employees with the tools and instructions necessary to protect data and maintain data privacy protocols.

• Prioritize the preservation of the attorney-client privilege in a remote working environment. Remind employees not to forward documents to personal email accounts or use other unsecure methods to transfer files or communicate with clients. Likewise, counsel them to avoid privileged conversations in the presence of family members or other housemates.

Leadership

1. Common challenges:

• Even before COVID-19, many respondents to Deloitte Consulting LLP’s 2019 Human Capital Trends¹ survey believed that new leadership skills would be required in the 21st century, with half citing an ability to manage on a remote basis as being important.²

• Legal executives have also identified leadership training as a top priority,³ and thought should be given to what new, different, or more deeply developed skills leaders may need in a fully or partially virtual environment.

2. Responses:

• The Simply Irresistible Organization^TM framework provides a starting place for thinking through which leadership skills you may want to emphasize. Note that, while the areas of focus may be the same in both virtual and in-person environments, the appropriate leadership behaviors may be very different.

• More specifically, you may want to consider the following to help engage your teams in a virtual environment:

- Check in frequently. Keep communications positive, if possible, but when not possible, be transparent about what you know, what you don’t know, and what you’re going to do about it.

- Keep messaging clear. Separate messages focused on well-being from those focused on substantive work. A message that addresses both runs the risk of being perceived as insincere.

- Be other-centric. “How are you” is better than “I care about you,” because it focuses on the recipient of the message, not the sender. Try to remember that each person is adapting to the workplace changes in his or her own way and at his or her own pace.

- Be open and honest. Share your own experience. Doing so can help to create a sense of psychological safety, which in turn opens the door for others to talk about their experiences.

- In addition to individual leadership skills, training may be necessary to help legal department leaders reimagine team dynamics for the extended virtual work environment

Tax and immigration considerations

1. Common challenges:

• Workers who normally work in the office may incur tax consequences as a result of working in another geography, whether they are at home or stranded or quarantined in another location, if that alternate location is in a tax jurisdiction that is different from that of their office.

• Where employee furloughs or separations are expected, consider the implications for those employees who hold visas. In the case of separations, affected employees may be delayed in leaving the country in a timely manner as required by applicable immigration law because of travel restrictions in the United States or abroad, and furloughs may not be allowed.

2. Responses:

• Know where your employees are physically located. Maintain records for days worked from any location that is not the office, and check state and international tax rules and guidance to determine any potential tax ramifications.

• Understand the current state of immigration law to inform decision-making related to employee furloughs and terminations without discriminating.

A return to the physical workplace may be necessary for some portion of your workforce. Note that employees may have strong feelings about returning to work, both for and against. If possible, allow employees to express these concerns and play an active role in planning their transition back to work, if possible. How employees are treated now will likely affect their long-term loyalty to the organization.

When planning for a return to the workplace, several relevant considerations are important:

Testing and protective gear

1. Common challenges:

• Employers may consider workplace testing to help allay concerns over physical workplace safety. Equal Employment Opportunity Commission (EEOC) guidance addresses certain diagnostic testing, but in an environment where employees may want to know the status of their coworkers’ health, maintaining data privacy may be more difficult.

• Employers may still be required to accommodate employees with disabilities, including those with a higher risk for severe illness.

• The availability and efficacy of protective gear for both your workforce and visitors and customers should be considered, and OSHA may have issued specific guidance for your industry related to protective gear.

2. Responses:

• Require that managers and other leaders are well-trained and frequently updated on procedures related to testing and the requirements related to protected employee health data. It is critical that this data not be used in employment-related decisions (such as raises and promotions).

• Establish protocol related to accommodations and employee health considerations. Managers should not be making these decisions on their own.

• Be proactive in securing the appropriate protective gear. Typical supply chain systems may not be functioning as usual, and timelines may be extended while shortages in supply are to be expected.

Facilities and customs

1. Common challenges:

• The pre–COVID-19 trend toward coworking, hoteling, and shared or creative spaces may make returning to the workplace more challenging.

• Workplace hygiene standards will be significantly more important to workers, but may be difficult to meet. What may have been previously unnoticed will likely be met with intensified scrutiny.

• Mail distribution and deliveries can be a source of concern.

Responses:

• Consider renovations to the workspace that may include the installation of no-touch options, screens, or partitions between employee workstations. The office may need to be reoriented so that employees do not face others and can maintain the appropriate distance. Common and community spaces may need to be closed or limited in their use.

• Review and renegotiate contracts with building maintenance and cleaning crews to include provisions related to using FDA-approved disinfecting products and techniques. The frequency and scope of cleaning may need to be expanded as well. Be sure to set up communication channels so employees can report concerns with office cleaning routines.

• Establish mail- and package-handling protocols that may include requirements to wear gloves when handling, disinfection of packages, and holding mail for a sitting period prior to distribution. Train staff on appropriate protocols.