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Thursday, Jun 30, 2022

Law Firms Help Businesses Navigate Return to Office

Hannah Sweiss, an associate who works out of the downtown office of employment law firm Fisher Phillips, has hosted 60 webinars on various Covid-19 issues since the pandemic began.

The pace hasn’t let up.

The rise in vaccination rates and the push to drop statewide restrictions has made the past couple of months “the busiest I’ve ever been in my career,” Sweiss said.

As businesses grapple with reopening plans, labor attorneys in Los Angeles are navigating an ever-evolving web of policies as they try to meet growing demand for pandemic-related advice.

“Within the last month, it’s been constant fires to put out,” said Karina Sterman, a partner at Century City-based Greenberg Glusker Fields Claman & Machtinger. “Everybody was anticipating so much, and we’ve got so many moving parts.”

So much uncertainty surrounds reopening guidelines that, Sterman said, it’s “literally a daily change in advice.”

“There’s just a lack of predictability,” she added.

Sterman and other lawyers with practices focused on Covid-19 say they’re as busy now as they were in the beginning of the pandemic — if not busier.

The boom in business is driven by shifting guidance from the California Division of Occupational Safety and Health and conflicting municipal policies, as well as evolving questions about mask mandates and vaccination privacy.

While Gov. Gavin Newsom effectively lifted all statewide capacity and distancing regulations for most businesses and activities on June 15, many local restrictions remain in place, including in Los Angeles County, and attorneys are warning clients to proceed with caution.

“It’s just this layer upon layer of rules and requirements that vary,” said Gary McLaughlin, a partner working out of the L.A. offices of Akin Gump Strauss Hauer & Feld. “Trying to kind of make sense of all of it and make it work under all of those rules is challenging.”

Cal/OSHA’s board voted 5 to 1 June 17 to revise its Covid-19 emergency temporary standards for California employers, lifting mask requirements for fully vaccinated individuals. The standards apply to every workplace with more than one employee.

The board had already considered two revisions in the last month. Until the new standards were approved, employers were expected to comply with the most recently approved standards, which have been in place since Nov. 30 and mandate things like the use of face coverings, physical distancing and providing testing to employees exposed to Covid-19.

That left a two-day gap between the June 15 statewide reopening and guidelines intended to drive that reopening. Gov. Gavin Newsom issued an executive order on June 17 to skip the customary legal review that would have pushed the effective date of the new rules to June 28 so that they could go into effect immediately.

Competing messages

“It’s incredibly frustrating not to get timely guidance,” Sterman said. “We’re just trying to hold back all these conflicting and competing messages and trying to remind all our clients who are employers to just be patient.”

Sterman noted that L.A. County public health officials are asking that any workers who can work remotely do so.

“I don’t know how employers are supposed to scale up, scale down, figure out where to spend money, how to get ready, how to figure out how to navigate people’s expectations,” Sterman said. “I just feel bad.”

The new Cal/OSHA rules continue to distinguish between vaccinated and unvaccinated workers but eliminate physical distancing protocols, which the previous proposal would have kept in place until July 31.

They also eliminate mask requirements for immunized workers and add that vaccines obtained outside the United States are acceptable.

But lawyers at the downtown offices of labor law powerhouse Ogletree Deakins Nash Smoak & Stewart noted when those rules were proposed that they still didn’t specify “whether an employer must obtain a copy of a vaccination card, simply review the card, or can rely on self-certification forms instead.”

Asking questions

Ogletree Shareholder Betsy Johnson said her clients are asking questions about three main areas: their legal obligations, employee relations and communication, and the practicality of adhering to new Cal/OSHA requirements “and how to do that in a safe and efficient manner.”

“Unfortunately, the legal part is the part that is most in flux right now,” Johnson said.
Ogletree lawyers analyzed the new Cal/OSHA proposal in a post on the law firm’s blog, which has served as a clearinghouse for Covid-19 information over the last year. Other major employment firms have similar websites, and lawyers have embraced blogs, videos and webinars to connect with clients on policy changes and emerging labor issues.

For Sweiss at Fisher Phillips, the most common questions concern vaccine requirements, documentation and privacy, she said.

“How do I track it? What information do I need to get? How do I maintain that information? Everything seems to be hinging on vaccination status,” Sweiss said. More advanced questions can drill into complex legal issues.

For example: Employers can inquire if an employee is vaccinated and obtain proof, but they can’t share that information with other employees. At the same time, under previous rules, vaccinated employees could go without masks, but if one employee isn’t vaccinated, all were required to wear masks.

Employers have a lot of questions about how these regulations mesh. For example, if the single unvaccinated employee goes on vacation, can the remaining vaccinated employees work unmasked, or would that effectively identify the unvaccinated employee?

“There are all kinds of weird things we’re trying to navigate,” Sterman said.

Sweiss said answers to some of the questions involve pulling from many areas, from privacy law to anti-discrimination law.

“Nobody has a clear path here,” Sweiss said.

‘Constant change’

McLaughlin, the Akin Gump partner, said he’s seen “ebbs and flows” throughout the pandemic.

“It’s really been just this constant change in landscape over the months,” he said
Lately, more employers are seeking advice on long-term work-from-home policies as they try to manage returning to the office while maintaining at least some of the remote capabilities the pandemic spurred.

“There’s that recognition now that this has been a fundamental shift,” McLaughlin said.

Randall Leff, co-managing partner at Beverly Hills-based Ervin Cohen & Jessup, said his conversations with clients focus on culture. Employers considering whether to allow permanent remote work should consider their core values.

“We can process work really well remotely, but it’s hard to maintain, promote and develop a culture remotely,” Leff said. “It’s a really important thing for businesses to think about. This is going to be defining your culture going forward.”

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