GCs Swing Into Action As Cos. Hope To Avoid Virus Outbreaks

Law360 (March 6, 2020, 12:57 PM EST) -- As the COVID-19 virus spreads quickly in the U.S. and around the world, Henry Ford Health System general counsel Michelle Johnson Tidjani is focused on education and communication with other executives and staff members.

Not only is she involved in crucial conversations to make sure the Detroit-based nonprofit health care organization is complying with workplace measures and health and employment laws, but she's also ensuring facts and updates are properly and effectively shared with employees and patients.

"I think the key from the general counsel perspective is education, education, education — really supporting the workforce and making sure that we have accurate messaging," said Tidjani, who's also the senior vice president there.

She's also trying to ensure the communication remains consistent.

"If somebody has a virus or thinks they have the virus, we want to support the organization in making sure we're consistent in our approach," she said. "We can't have one-off resolutions for employment issues."

Organizations like the Henry Ford Health System and others across industries are calling on their in-house counsel to answer questions and provide guidance to help prevent a viral outbreak in their offices. In the background, general counsel and their teams are balancing legal and compliance risks that might arise with employees' concerns.

For many companies, the virus has created uncertainty around workplace issues including employment, health, safety and privacy. Experts say these blurred lines underscore the importance of the legal department being involved in discussions as soon as possible.

"It is important [for companies] to take some proactive measures that demonstrate their concern and support and acknowledgement of the issue because it is certainly something that's coming of age right now," said Jenny Schwope, a senior director of national law firm management at Special Counsel's Parker + Lynch Legal.

The situation is unfolding daily.

What's commonly known as the coronavirus was first reported in December in the Hubei province of China, and has since affected around 80 countries and resulted in more than 3,200 deaths, according to the World Health Organization's latest tally as of Friday. In the U.S., 12 deaths have been linked to the virus, and states including New York, New Jersey and Tennessee within the past week confirmed their first known cases.

Similar to other crises like a cyberattack or natural disaster, general counsel and other experts acknowledged it takes a coordinated, cross-functional effort to address the questions that might arise from various entities of the business.

"A health crisis is unique," said Ben Briggs, who serves as co-chair of the workplace safety and environmental practice group at Seyfarth Shaw LLP. "It's different in that it has the potential to bring a business to a screeching halt."

General Counsel Take Action

At Henry Ford Health System, Tidjani's team heads the systemwide emergency preparedness program. For the coronavirus outbreak, they've set up a multidisciplinary incident command center that includes representatives from various parts of the organization such as legal, information technology, clinical, supply chain and human resources.

The team is split into two levels — a group of executives that meets once a week, as well as a daily safety huddle — that address issues from patient care to public health and employment.

"We have done as much as we can to overcommunicate about the fact that, while this virus is new, we do have infrastructure to deal with it," Tidjani said.

Ogletree Deakins Nash Smoak & Stewart PC shareholder Bonnie Puckett suggested companies keep their communications flexible, acknowledge the rapidly evolving nature of the situation, and think carefully before enacting requirements or restrictions to avoid backtracking on them a few days later.

Tidjani and other top lawyers around the world are likely fielding questions from all angles.

While human resources might wonder what information to share with the workforce and how to manage potentially infected employees, the business staff is likely trying to determine when and to what extent they should enact restrictions around travel, said Susan Kline, a partner at Faegre Drinker Biddle & Reath LLP who formerly led a human resources function for a trade association.

Meanwhile, IT needs to figure out if the company's system has the capacity to suddenly handle more remote employees if they're advised to work from home, and facilities management should be concerned about increasing sanitation efforts around the office.

Amid these questions, some employees might offer creative — but noncompliant — solutions that they think will put the company at the forefront in its response, such as taking everyone's temperature when they arrive at the office.

"It sounds like a simple and helpful thing to do, but that would violate the Americans with Disabilities Act in the U.S. Equal Employment Opportunity Commission's eyes until and unless the Centers for Disease Control and Prevention or an agency of that sort … issued guidance saying it's widespread enough that employers should do that," Kline said.

This is where the general counsel and their teams come in to offer suggestions.

"If you've got your in-house counsel who's keeping an eye on this, you can be in that conversation making suggestions where somebody wants to do something and you say, 'Well, here's what we could do that would be compliant and would get you to the same place in terms of information you really need,'" Kline said.

And even though in-house lawyers can probably do their jobs remotely, Briggs advised legal teams to establish contingency plans in case, say, half of the law department gets sick.

He also said legal departments should monitor the daily guidance issued by the CDC and WHO, as well as updates circulated by local health authorities. Some of his clients have offered a remote option to employees — even to those who traditionally haven't been able to work from home, while others have eliminated nonessential travel, especially to countries most heavily affected by the virus.

What They're Watching Out For

The situation might seem like a herculean undertaking for a legal department that also has to manage other daily responsibilities. For topics that in-house counsel might not be familiar with, they should rely on their outside counsel.

At Ogletree, Puckett is part of the team answering clients' questions related to canceling business travel, dealing with workers who have typical cold and flu symptoms, managing global events and handling employees' anxieties.

Still, not every company can respond in the same way. Some organizations are headquartered outside of the U.S., and employees in retail, hospitality and other customer-facing industries can't complete their jobs from home.

General counsel in those situations should advise companies to tailor plans to specific jurisdictions — rather than implement blanket procedures — because there might be different rules, say, around employee leave benefits or data privacy, according to experts.

Another issue general counsel should keep an eye out for is increased malware attacks. As the virus continues to spread and some employees are out sick or working from home, new opportunities arise for cyber criminals to insert themselves into the process, said Paul Bond, a partner in the cybersecurity group at Holland & Knight LLP.

He cautioned lawyers to watch out for phishing emails from senders pretending to represent health authorities, and urged in-house teams to reinforce cyber training and remind employees about the importance of following remote policies to protect their devices and technology.

"Public health events like this just strain the system," Bond said. "There are fewer people who are doing more work with less time, and there's a human tendency to skip steps."

--Editing by Rebecca Flanagan.

For a reprint of this article, please contact reprints@law360.com.

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