BigLaw Among Firms Facing Complaints Of Lax COVID Safety

Complaints have been lobbed against offices of Dinsmore & Shohl LLP, Lewis Brisbois Bisgaard & Smith LLP and more than a dozen other legal employers over the past year alleging inadequate COVID-19 safety measures, federal documents show, and experts say firms need to be increasingly vigilant to protect against such complaints.

A formal complaint filed with the federal Occupational Safety and Health Administration against Dinsmore in January alleged that in the law firm's Detroit office, remote working and masking rules were not being followed, employees were not properly spaced at their desks, and large meetings occurred at which people did not distance themselves or wear masks.

The case launched by the complaint was closed in February, and OSHA did not impose a fine or release any further details. Dinsmore did not respond to a request for comment.

In December, a nonformal complaint was filed with OSHA against Lewis Brisbois claiming that employees in the firm's Las Vegas office were not required to complete state-mandated quarantines and were allowed to return to work before receiving COVID-19 test results.

Similarly, there was no fine and no further information divulged by OSHA as to the conclusion of the case. The firm declined to comment on the matter.

Often when OSHA receives a complaint, the agency sends a letter to the employer being accused of a violation, and the employer is then expected to investigate the complaint and explain how any violations found will be remedied. If that explanation is deemed satisfactory, the case is closed.

OSHA rarely issues citations in such cases. According to longtime workplace safety attorney and Seyfarth Shaw LLP partner Brent Clark, his firm has helped clients draft "thousands" of such letters responding to OSHA complaints related to COVID-19 this past year and none of those has resulted in a citation.

Other times, OSHA itself will make a trip to the place of employment to conduct an inspection and determine whether a fine should be imposed and what remedies, if any, are needed.

Other legal employers identified by Law360 Pulse who received complaints included smaller law firms and plaintiffs firms, with at least 12 complaints related to COVID-19 safety made against 12 different law firms since the beginning of 2020.

The complaints ranged from firms not enforcing mask rules to allegations such as those against Napierski VanDenburgh Napierski & O'Connor LLP in Albany, New York, which claimed that multiple workers at the firm had COVID-19 and came into the office while symptomatic, and that the office failed to enforce capacity rules, mask rules or "any other mitigation."

Napierski VanDenburgh did not respond to a request for comment.

In at least one case, a fine was issued. A $110 penalty was levied against Lobb & Plewe LLP after a paralegal complained that the California-based firm required them to go into an office every day where masks were not required, and then a human resources professional told them "good job getting us all sick" when they contracted COVID-19. The firm did not respond to a request for comment.

In addition to law firms, a number of district attorneys' offices were the targets of complaints with OSHA, including the Ventura County and L.A. County district attorney's offices. There also were multiple complaints against the Clark County District Attorney's Office, including allegations that COVID-19-positive employees were permitted to come into work.

Officials from Ventura, L.A. and Clark counties did not respond immediately to requests for comment.

According to Seyfarth Shaw's Clark, COVID-19-related complaints against law firms are exceedingly rare, as firms are often cautious when it comes to workplace protections.

But firms do tend to face unique challenges when it comes to ensuring compliance, especially across multiple offices, he said. Lawyers tend to be independent, and as a result of that, some can be resistant to certain rules, such as those requiring mask use. And there's a degree of COVID-19 safety fatigue setting in more than a year into the pandemic, he added.

Plus, the current atmosphere in which vaccines are being distributed and health and safety guidelines from the government around COVID-19 are in flux is creating a shifting environment in which employers, law firms included, are likely navigating changes to their policies.

Navigating those changes and ensuring they are up to date and communicated properly requires a great degree of caution, Clark said.

There are areas for flexibility, such as whether to mandate or simply encourage employees to get a COVID-19 vaccine, but then other areas require strict compliance, he said.

"When it's safety and health, it's really not up for debate," Clark said. "If it's a safety issue — health screening, masking, social distancing, core safety requirements — you have to do them."

Ashley Strittmatter, a shareholder at Baker Donelson Bearman Caldwell & Berkowitz PC who specializes in OSHA compliance, says she recommends that her clients draw up one uniform COVID-19 prevention plan across the U.S., based on the most strict state-level guidance where the firm or company is located.

A hazard assessment should also be conducted in each location to determine whether there are any particular vulnerabilities or special factors at a certain office, she said.

Once the prevention plan is in place, she recommends that employers nominate a COVID-19 prevention plan coordinator from each office who is responsible for implementation of and adherence to the plan in that location.

It's also important to educate employees on the plan, both so they can comply and so they understand what the employer is doing to keep them safe, therefore potentially preventing a complaint being filed with OSHA out of confusion or a misunderstanding, Strittmatter said.

And, she added, it is vitally important to ensure all employees feel comfortable going to their COVID-19 plan coordinator or another person in charge with concerns related to health and safety, so the firm can deal with the concerns quickly.

Now is an especially important time to be vigilant, Strittmatter said, because OSHA has implemented a "national emphasis program" effective March 12 in which it has increased its focus on COVID-19 enforcement.

"Go look at the citations being issued under 5(a)(1) [of the Occupational Safety and Health Act of 1970] for COVID violations. Some are significant. It is not something you want to have OSHA inspect and be found to not be following their recommended protocols," she said.

--Editing by Orlando Lorenzo and Nicole Bleier.


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

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