Attorneys During COVID-19

Some advocates have noted that the legal industry hasn’t always been known for its rapid adoption of new policies. Though, this changed in the wake of COVID-19 where stay in place orders required legal firms to make creative decisions. In March, these orders presented new challenges to lawyers and it made them wonder how they could appear in court, arrange depositions, meet with clients, and have consultations. Daily work communication moved from in-person interactions to emails, which lead to a huge increase in spam and phishing scams that attorneys have to keep an eye on. Outside of how law firms are now structured, this pandemic has brought up unique legal questions related to employers and employees. With the Food and Drug Administration set to rule on authorizing a COVID vaccine, businesses are beginning to wonder the legality behind requiring employees to get tested. On the other side of the aisle, workers are seeking legal resources in an environment where they are being fired in questionable layoffs and being evicted due to limited income. I reached out to Caroline Harrison, founding partner of Pham Harrison LLP, to discuss the current issues facing attorneys during COVID-19.

Have you seen a willingness of parties to explore the settlement of litigations due to concerns for potential delays in the judicial system?

I would say that I have seen some willingness for parties to explore settlement due to how long it’s going to take to get through the judicial system. There are a lot of delays from the civil side and a lot of hearings being conducted by zoom. If you want a jury trial, at least in Texas, we’re not doing that for the foreseeable future.  In fact, last week the Texas Supreme Court issued another in its line of COVID orders prohibiting jury trials until at least April 1. There’s been a couple of experimental jury trials done by zoom, but generally the consensus by lawyers has been that it’s really not ideal and not the best thing for the client. There’s a lot of delay and because things keep getting pushed, we just don’t know when to expect jury trials will actually resume and there is going to be quite a backlog once they do resume. My best guess is we’re probably looking at late spring to summer before we have jury trials again, and then you’re going to have 18 months practically of backlogged jury trials. So, I have seen clients certainly get frustrated with how long the system is taking and some of them have been willing to settle due to how long the system is taking, and some of them haven’t. And I would say at the beginning of COVID, everybody was kind of waiting and seeing, and then we had a phase where people were probably more willing to settle. Now we’re sort of into the arena where people are dug in on their positions. So if they’re dug in on their position they’ve resigned themselves to the fact that this is just going to take longer and I would say that that’s probably not impacting settlement negotiations at this point as much as it maybe was six months ago.

A trial is very expensive, so ultimately you’re going to spend more if you go to trial. But if you’re really dug in on your position and you really think that you’re right, sometimes the money doesn’t matter as much to you. I’ll tell you what I see is with companies becoming cash strapped, from my perspective with employment law specifically, I see a lot more terminations and layoffs happening. That eventually leads to more litigation in the employment arena because employees have the potential for filing suit. Unless you’re talking about a very a small business who’s not really versed in litigation, employers who have been down that road before know how long it takes. Employers who  think they have a frivolous claim filed against them or  who think they really had grounds for terminating the employee, won’t be eager to settle.

Employees across the country are stating that not being allowed to go to work unless they are tested for the virus is a form of discrimination with potential HIPAA violations. Are there legal arguments made by companies in support of vaccination requirements and is a pandemic exempted from guidelines like HIPAA?

If we are talking about employers requiring employees to test before they come to work, that is not discriminatory and the EEOC has put out some guidance on that because of the pandemic. Employers still have an obligation to provide a safe workplace for their employees under OSHA regulations. Employers must think about what they need to do within reason to provide a safe workplace for employees and they have a lot more leeway because of the pandemic to set up different parameters. Setting guidelines for working remotely or not being allowed to come back to work if you’ve been exposed until you get a negative test are allowed and do not violate ADA or HIPAA. When you talk about HIPAA implications that does not apply to most employers.  However, employers have an obligation  to keep employees’ medical information confidential. That would include if you’re doing screenings of employees, like when you have them come into the office and you’re taking temperatures. While HIPAA doesn’t cover most employers, what employers are required to do under the ADA is keep medical information confidential and that would include if you’re taking temperatures and screening people daily when they come in.

And then with regard to the vaccination, that’s another question. An employer can require an employee to get a vaccination in order to keep their job, within reason. For example, if you have a hospital worker that seems like a no brainer why the business has a legitimate reasoning to want an employee to get a vaccination. When you start talking about hotel workers, you need to ask, is there a business related reason you’d need to require them to get a vaccination? There probably is if they’re interacting with the public on a regular basis and the EEOC has put out guidance on that. However, if there’s some reason that you would not want to get the vaccine because you have a disability, your employer would have to take that into account under the ADA and work with you on an accommodation. Then there also could be some religious objections to getting a vaccine and your employer would have to work with you and accommodate those types of concerns as well, but short of needing to accommodate either a disability or a religious belief, employers can in fact require you to get the vaccine.

On March 16^th, the United States Supreme Court began to set arguments by telephone and the Florida Supreme Court adopted Zoom for discovery hearings, even including a drone to show real images of the actual courtroom. Can juries be swayed differently due to a virtual attorney rather than an in-person one and what is the importance of face-to-face interactions in hearings and depositions?

Virtual hearings  create logistical issues. If you’ve been on a zoom conference call, you know that people tend to talk over each other and it’s no different when you’re in a hearing. It’s hard to communicate sometimes. With regard to juries, I think that the problem with zoom jury trials and why a lot of lawyers don’t like the idea of them, is that you can’t really guarantee that jurors aren’t doing something else when they’re just on a zoom call and it makes it a lot more difficult to try to gauge reactions. It makes it more difficult to try to get  a personal connection. You can’t really look people in the eye and you can’t really observe how they’re reacting. Those types of things make a zoom jury trial logistically difficult and I think that’s a lot of the reason why it hasn’t been happening. We might get to a point where the attorney who’s smoothest at putting their documents up and sharing their screen have the advantage. I think that juries could easily be swayed by that, but we really just don’t have that much experience with it because so many attorneys don’t want to do it.

A report by the UC Hastings College of the Law showed that family responsibility discrimination case filings increased 590% from 1998 to 2012. During the same time the number of employment discrimination cases filed in federal courts decreased by 13%. Do you see COVID-19 and the recent surge in startups changing this trend and will there be any other key legal issues that attorneys will focus on?

I have not personally seen an increase in startups and haven’t worked with a lot of new startups. Before COVID I was working with a tech incubator in Fort Worth called Tech Fort Worth, where I have done some mentoring for startup companies. I’ve definitely been seeing an upward trend on COVID related employment litigation. There’s been lots of disability discrimination cases filed based on COVID-related terminations. There have been multiple instances where employers have said, you have to come back to work and you don’t have a choice and the employee will mention an underlying condition and will require accommodations. An employer is not required to allow you to work from home just because you have an underlying condition. An employer is required to work with you to try to accommodate that condition. But that doesn’t mean you get to work from home just because you want to, and you were allowed to for a month or so at the beginning of COVID. We have seen a huge increase in disability discrimination based on those types of situations and then we’ve seen some litigation where employees have been fired for taking leave under the FFCRA, which is the Families’ First Coronavirus Response Act. It was an act that went into effect April 1st and it allows for employees to take two weeks of job protected leave if they have a COVID related illness, or if they have been ordered by a doctor to quarantine because they’ve been exposed. We’ve seen a lot of department of labor investigations based on violations of that law and some lawsuits filed based on retaliation for taking that leave.

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