In-house teams respond to the Covid-19 pandemic – and prepare for the aftermath

As the Covid-19 pandemic continues to cause significant global disruption, with large sections of the world’s workforce now in lockdown, Lucy Trevelyan examines how in-house lawyers should be responding to the crisis and what they can do to prepare their organisations for life after Covid-19.

In-house lawyers in labour-intensive businesses with factories and/or offices across countries such as India have a key role in tracking and complying with government orders and restrictions, especially relating to lockdown, says Vikram Shroff, Committee Liaison Officer for the IBA Employment and Industrial Relations Law Committee and Head of the HR Law practice at Nishith Desai Associates, Mumbai.

‘As the situation has unfolded, in-house counsel have been preparing and guiding their organisation to take proactive measures to help contain the virus and at the same time ensuring business continuity,’ he says. This can be challenging, especially as governments have had to react dynamically to the developing situation.

In-house counsel should work closely with human resources (HR) teams to ensure the safety and wellbeing of employees, especially in light of the employer’s duty of care obligations, adds Shroff.

Aoife Bradley, Diversity and Inclusion Officer on the IBA Employment and Industrial Relations Law Committee and a partner at LK Shields Solicitors, Dublin, says the appropriate managing of remote teams in lockdown is essential to maintain cohesion and some semblance of a regular working day.

‘Communication is vital and should be regular, and the use of software for video meetings and updates should be considered. Structure and flexibility are required,’ she says. ‘The expectations of remote workers should be clear, but need to be reasonable and it also should be recognised that there may be areas that need to be managed such as childcare responsibilities or intermittent issues with broadband.’

‘An agile approach to business continuity is needed for this evolving situation,’ adds Bradley. She suggests that over the coming months, we can expect waves of restrictions and that the virus will continue to pose a threat. This will result in ongoing requirements for social distancing and heightened hygiene, sanitation and health and safety standards in workplaces and public spaces. This will have knock-on effects, for example on public transport and in the form of restrictions on gatherings of people. Ongoing monitoring of developments will be crucial to anticipate and react, Bradley concludes.

There are pressures on in-house lawyers from all fronts, says Edith Hofmeister, Vice-Chair of the IBA Business Human Rights Committee.

Like many countries the United States Congress has passed huge relief packages in response to this global crisis. Other governments, both outside and within the US at a non-federal level, have also passed legislation, which may or may not be complementary. 

‘The new laws address a host of legal issues that will affect business tax, treatment of net operating losses, small business and contractor loans and grants, social security and payroll tax changes and early retirement withdrawals’, for example, says Hofmeister. ‘In-house counsel must understand the details of all the new legislation to keep the client on the right side of the law but also to take advantage of all benefits the legislation offers.’ 

For the time being, in-house counsel – like everyone else – are in the position of waiting for their respective countries to emerge from lockdown. In-house counsel can use this opportunity to anticipate the new workplace challenges that will surface once the lockdown restrictions end, says Shroff. ‘They can create core groups to help prepare and front-end their organisations in time to be ready to respond.’

In-house counsel need to work with HR teams to develop necessary methods and practices to reduce the overall risk, he adds. These might include travel disclosures, reducing unnecessary travel, employee vaccination, flexible working schedules and training on cleanliness and hygiene standards.

Employment contracts and HR policies may need to be revised to account for greater flexibility for both parties, should such an unprecedented situation occur in the future, believes Shroff. ‘In-house counsel need to remind the organisation to maintain confidentiality once the workplace resumes, as any leaked information of past medical history could easily lead to situations of employee discrimination,’ he adds.

The experience in China, Hong Kong and Singapore suggests it will be a long time until we are back to ‘normal’, says Melanie Lane, a partner at CMS, and it is probable that ‘normal’ will mean something different after the Covid-19 pandemic.

‘Legal teams should already be considering what may be needed to support a gradual return to office work or full capacity working, particularly while social distancing or other safety requirements remain in place,’ she says. ‘We also expect that the necessity of adapting quickly during this crisis will have caused businesses – and their workers – to have developed new and perhaps strong views about what working arrangements and operating practices have worked well (or not so well). It is likely that legal support will be required to align new priorities and preferences.’

Now, says Ian Stevens, also a partner at CMS, is a good time for in-house lawyers to dust down the company’s key contracts and refamiliarise themselves with the exclusivity, termination and exit assistance, business continuity, retention of title, suspension and step-in clauses.

‘This knowledge can make the in-house legal team invaluable in supporting the operations team to make difficult decisions about withdrawing from contracts, or in being aware that others may stop performing their obligations towards the organisation,’ says Stevens. ‘Keeping in close contact with key suppliers and customers at this time will also increase the likelihood of advance warning of any future difficulties.’