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A Conversation With ... Kevin Dunaway

Partner, Neale & Newman LLP

Posted online

How has COVID-19 affected business operations at Neale & Newman?
Most of our staff went to work remotely. There’s only been five to six of us routinely coming in. I’m proud to say that our firm has not had any layoffs or furloughs. There are about three people that, with their job function, really don’t have the ability to work remotely. We continue to pay all of them as if they were working. We did apply and we did receive a (Paycheck Protection Program) loan for our payroll. That was a planning mechanism by us in case business does slow down. No one can predict the impact of COVID-19 on any industry. Our leadership at our firm has elected to develop COVID-19 polices to make our employees as safe as possible.

As it relates to furloughs and layoffs, what guidance do you have for businesses in handling these discussions? Or issues to consider?
You have to operate, No. 1, with compassion toward those employees. The biggest risk for that employer is down the road, can you recapture those employees? Technically with a furlough, where you’re not necessarily terminating their employment, employees will probably come into the situation with their employer and say, “I’m either going to quit because you don’t have the work for me or I need you to terminate me so I can draw unemployment.” If that employee has moved on, you’ve probably lost that employee. How are you going to recapture the training, education and experience you invested in that employee? That is going to be a cost that employers haven’t seen yet, but they will.

COVID-19 has changed businesses dramatically, both customer facing and internally. What are some of the concerns employers have?
For people in the office, it’s how do you comply with COVID-19 restrictions. You get questions of: Do we require employees to wear masks? Do we require employees to wear gloves? Of course, we maintain the standard 6-feet separation, but how do we handle cleaning all of the commonly used office equipment or machinery? You have to pick an authority that serves as your standard. In our case, we’ve always relied on the (Centers for Disease Control and Prevention). The response to COVID-19 is evolving. Employers have to be aware of how that is changing. If someone has a fever and has a negative COVID-19 test, then they either have the flu or the cold, so you handle it in accordance with that diagnoses. If you have a person who has symptoms of COVID-19, but they haven’t been tested or been to a doctor, then you’ve got the quarantine issue because you have to assume that they have it. How do you screen people when they come into your office? Ultimately, that’s what employees are wanting to see, that the employer is trying to create a safe as possible work environment.

How will this pandemic change workplaces going forward?
Social distancing is going to continue on, for sure, until a vaccine is developed. I think employees who have worked remotely and feel like they can work remotely successfully will start posturing to go ahead and continue to work at home. Also, I think certain employers are going to say, “We’ve done this for five, six, eight weeks – worked our staff remotely – why do we need all of this physical space where people come? We can save our overhead costs.”

What kind of legal cases do you anticipate from the COVID-19 pandemic?
I think you’re going to find some potential employers that get hit with (Health Insurance Portability and Accountability Act) violations. Let’s say the employee tested positive for COVID and told the office administrator and the (human resources) head. HIPPA requires you to maintain that information confidentially. There may be claims brought down the road when someone develops COVID and has a long-term illness or dies from it, or they contract COVID because they are going to work in a manufacturing site and they go home to an at-risk person with whom they live and that person contracts it and dies. There may be some plaintiffs’ attorneys that bring claims for unsafe workplace; the employer didn’t do enough to protect employees from COVID exposure. You may have workers’ compensation claims. The plaintiffs’ bar is always looking for ways to recover damages for injured persons. Our job is to anticipate these issues and try and help employers navigate, limit or mitigate that exposure. The key will be how well the employer provided protection from coronavirus exposure in the workplace. This is a wave, and it could be a potential tsunami. This pandemic has produced more fear in my lifetime as a lawyer than any recession that we’ve had, any other flu epidemic we’ve had, any other international crisis we’ve had.

Kevin Dunaway can be reached at kdunaway@nnlaw.com.

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