Ben Lowrey – Law firms face challenges with the COVID-19 pandemic, but also law firm opportunities as demand for legal services in some areas boom.
Lawyers globally are facing requests for urgent advice on businesses needing to deal with redundancy and other issues relating to employment law, health law, privacy, insurance and commercial law issues, senior law rights and other issues creates demands in an unprecedented upsurge in demand.
A LawFuel survey of some of the urgent issues developing with the COVID-19 virus shows that firms are being asked to provide a growing laundry list of questions relating to the pandemic from London to New York and Sydney to Singapore.
Among the issues are questions about positive testing for coronavirus to how to advise employees afraid of catching the virus at the office.
Law firms are quickly responding to the pandemic with a variety of resources and are creating multidisiciplinary task forces set up to deal with the issues arising from the pandemic.
Law Firm Opportunities
But within the crisis there lies opportunities for law firms who are looking at the both long and short-term impact of the pandemic which can develop demand for legal services in various areas of practice.
Lawyers are being asked to consider their employment contracts in terms of redundancy issues and ‘force majeure’ questions.
Firms are being asked to evaluate the insurance position relating to business interruption, workers compensation, casualty and other insurance issues affecting their business.
This has also meant assistance renegotiating commercial and credit arrangements, for instance, and ensuring businesses proactively engage with stockholders, creditors and other stakeholders to ensure that all legal and financial obligations are met.
But lawyers also face issues relating to privacy of medical records and their need to protect employees and contractors from infection.
In the US, the Health Insurance Portability & Accountability Act (HIPPA) means that there are liability issues for employers who discover that employees are sick but need to both proect their other employees and also the privacy of their workers.
With the COVID-19 epidemic, attorneys say businesses have a heightened duty to determine whether to direct staff to stay at home and that involves calibrating their investigations of workplace safety and confidential medical information about employees.
Firms indicate that their is some ‘pre-aggressive’ confidential questioning involving queries about any contact an employee may have with any known carrier of coronavirus or someone who has been exposed to it.
The US Centers for Disease Control and Prevention say that employers do not have a duty to take the temperature of staff, but rather to base their decisions on what they know or should reasonably know.
A failure to handle the issue could be a negiligent retention, resulting in liability for the business.
Whatever the case, businesses need to stay aware of health and public announcements regarding COVID-19.
Further issues can arise under US law when an employee cannot come to work. Under the federal Family and Medical Leave Act (FMLA) employers must ensure their is compliance along with other State laws that may apply.
The FMLA requires employers with more than 50 employees within 75 miles of the company’s worksite to provide employees with a number of requirements that require careful attention, including job-protected, unpaid leave for specific medical and family reasons.
Employees who take FMLA leave are entitled to receive the same health coverage from their employers as they were before taking leave.
Demand for Health Care Lawyers
Demand for lawyers specializing in health care have exploded with the COVID-19 pandemic.
Apart from company clients health care facilities and others must also comply with legal requirements regarding ways they must comply with the virus where patients have shown symptoms of the virus.
But additional to the patients is the issue of protecting employees and the broader community, giving rise to an array of legal issues.
The evolving demands placed upon health care lawyers will continue to develop as the pandemic unfolds, but understanding the various issues as they interface with labor law and privacy issues will present a demand for legal clarity that will continue to challenge clients and lawyers alike.
The major firms, like DLA Piper with their COVID-19 resource center, Allen + Overy with their HR-related resource center, Shearman & Sterling’s COVID-19 resources and many more, including specialist firms working in health law, privacy, insurance and commercial law.
COVID-19 Privacy Issues
Privacy rights are another key area of intense legal interest. Privacy of health care issues are always important, even in normal times, but there are increasingly urgent and sensitive questions that arise in times like this.
The rights of individuals to their privacy is absolute, but it may be overridden in many jurisdictions where it is necessary and proportionate to the extraordinary circumstances such as those currently being experienced.
Data protection and legal rights relating patients permits the use of the information to be defined in a narrow manner, but in times of pandemic it may be that privacy lawyers are working to hinder the appropriate response to COVID-19.
Certainly privacy and data protection rights are being focused upon by law firms that are being asked to do so.
These concerns are global in nature and most jurisdictions strictly enforce the way in which health care data can and should be used.
In Europe, for instance, the European Data Protection Board and the ICO have both issued statements designed to assist employers and public bodies, so it is unlikely that organisations will find themselves in trouble for processing personal information where it is necessary to do so to treat patients or protect their staff.
The law firm opportunities that continue to arise out of the COVID-19 crisis will continue to evolve and develop, but it is clear that labor law, health and privacy concerns are among the paramount areas of demand from clients seeking assistance from their law firms.
Health & Privacy Law
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