Workplace Return Takes Lawyers to Uncharted Territory

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Esquire Deposition Solutions, LLC

Yes, “uncharted territory” is a cliche. And so is “new normal.” But that’s not going to stop us from using both terms here. You might say we’re taking those two tried-and-true tigers by the tail and plowing ahead regardless.

New normal? That would be the current business climate in which businesses and governments are struggling to re-open their physical premises amid a worrying rise in transmission rates of the COVID-19 Delta variant. Experience gained during the pandemic has taught lawyers that re-opening physical premises is a true choice — not a business imperative — given the demonstrably feasible alternatives of remote work and socially distanced client meetings via technology. 

Uncharted territory? Drafting a “return to the workplace” policy will be a novel undertaking for every law firm manager who attempts it. Roadmaps are as yet unwritten though there are a few buoys to steer between.

Lawyers Have Multiple Workplaces

Lawyers are unique among professionals in that, for many, their work is performed not only in office spaces (over which lawyers have some control) but also in locations over which lawyers have no control whatsoever. A typical workweek for attorneys in law firms will take them to:

  • courthouses,
  • government buildings (federal, state, and local),
  • schools,
  • hospitals and physicians’ offices,
  • police departments and prisons,
  • other lawyers’ offices,
  • client offices, factories, stores, farms, and processing plants.

All of these locations will have their own COVID-19 compliance obligations and “return to the workplace” policies in place. Today, COVID-19 vaccinations appear to be the leading strategy for all of these different workplaces to safely return to in-person activities. Lawyers who aren’t able to navigate freely among all (or most) of these environments will have a difficult time giving clients the zealous advocacy to which they are entitled.

Many federal office buildings are off-limits to unvaccinated lawyers. According to news accounts, individuals entering federal buildings in high COVID-19 transmission locales must provide proof that they are fully vaccinated against COVID-19 or provide evidence of a negative COVID-19 test within the last three days.

Federal courthouses may soon follow suit.

In fact, some federal courts are already adopting rules that either require or encourage lawyers to get the COVID-19 vaccination. The U.S. Court of Appeals for the Tenth Circuit recently restricted access to its Denver courthouse to persons who are not fully vaccinated against COVID-19. As one commentator noted, this means that vaccinated lawyers will be able to argue their case in person while unvaccinated lawyers will be required to petition the court for leave to argue via videoconference.

The Tenth Circuit has appellate jurisdiction over cases arising in Colorado, Kansas, New Mexico, and Oklahoma.

In the U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Florida and Georgia), Amended General Order No. 51 (Aug. 13. 2021) requires all court personnel and visitors to attest that they are fully vaccinated against COVID-19 or to provide evidence of a negative COVID-19 test within three days of entering the courthouse. The Eleventh Circuit is still holding oral argument via videoconference, so unvaccinated lawyers in that circuit are not yet forced to forego the opportunity to argue their appeal in person.

The situation is similar in the federal district courts as well. On Aug. 26, the U.S. District Court for the District of Maryland entered an order (PDF) prohibiting anyone from entering the courthouse without proof of either a COVID-19 vaccination or a recent negative COVID-19 test. The order takes effect Sept. 8.

The specter of a lawyer’s vaccination status impairing client interests is beginning to appear in state courts as well. On Aug. 18, the Washington Supreme Court entered an order, In the Matter of Covid-19 Vaccinations for Employees of the Supreme Court, that requires all court personnel to be fully vaccinated against COVID-19 by Nov. 1, 2021, or risk termination. Employees with a disability-related justification or a sincerely held religious belief that prevents the administration of the COVID-19 vaccine are exempt from the order.

Importantly for attorneys, however, is the following language:

Additionally, all other courts, agencies, and entities in the judicial branch, including the Washington State Bar Association, the Office of Public Defense and the Office of Civil Legal Aid, are strongly encouraged to adopt and implement similar vaccination requirements for their Workers as defined above.

Clearly, the Washington Supreme Court would like to see lawyers in Washington get a COVID-19 vaccine before entering courthouses in the state.

In New York there are, as yet, no vaccine requirements for persons entering courthouses. However, recently announced COVID-19 screening policies suggest that admission to a New York courthouse cannot be taken for granted. Under new procedures that took effect Aug.13, programs that gave lawyers special courthouse access rights have been suspended, and all visitors must submit to temperature screening and questioning prior to admittance to a New York courthouse. Additionally, having flu-like symptoms, close contact with a person who recently tested positive for COVID-19, or recently returning from an international trip are red flags that could separate lawyers from their clients at the courthouse door.

Law Firms Are Insisting on Vaccinations

For now, law firms in the United States appear to be adopting an approach that mixes continued remote work, delayed office openings, re-designed COVID-safe workspaces, and vaccine mandates for persons coming into those offices.

According to news reports, the vast majority of law firm managers will be requiring COVID-19 vaccinations as a condition of returning to firm offices. A survey (registration required for access) conducted by The American Lawyer found that large law firms are almost uniformly requiring lawyers and support personnel to be fully vaccinated prior to returning to office premises. Some firms are requiring proof of vaccination for vendors and visitors as well.

These firms appear to have the law on their side. According to revised guidance released Aug. 13 by the Occupational Safety and Health Administration, non-healthcare sector employers (e.g., law firms) should “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

The consensus view among employment law experts, backed up by recent guidance from the U.S. Equal Opportunity Commission, is that employers lawfully may require employees to get a COVID-19 vaccination as a condition of employment — provided that any vaccine mandate not violate anti-discrimination laws or First Amendment rights.

Bowing to the spread of the COVID-19 Delta variant in many places across the United States, some firms are delaying planned return-to-office dates — in fact, Goodwin Procter management said it would not be opening offices until Nov. 8, 2021.

Returning to a Kinder, More Careful Workplaces

Unfortunately, vaccinations aren’t the answer to all “return to the workplace” issues. Employment law experts are predicting a spate of lawsuits from employees who simply feel uncomfortable and threatened by in-person, face-to-face workplaces. These experts say there will be pressure from employees who may insist on vaccinations for co-workers in order to feel safe returning to the office.

There are some measures law firm managers can take to ease tensions in the post-pandemic workplace.

First, they can expand the availability of sick leave and make sure that workers feel comfortable taking that leave when they feel ill.

Second, law firms can continue to make remote work and flexible work available to lawyers and staff.

Third, law firms can create open, COVID-safe workplaces that lawyers, staff, and clients will not be reticent to visit and work in.

Finally, as the American Bar Association recently advised, law firms should write “return to the workplace” plans that don’t adversely impact women, caregivers, senior lawyers, and minorities on compensation or opportunities for advancement and career development.

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