It only feels like the COVID-19 pandemic has been going on forever. Some people have been dealing with it longer than most. In February 2020, officials in Washington reported what was thought at the time to be the first COVID-related death in the U.S. Very little was known at that point about this “novel coronavirus, or how it spread. And someone had to transport the victim’s body.
Travis Vance, co-chair of the workplace safety and catastrophe management practice in the Charlotte office of Fisher Phillips, helped represent the client company that transported that first victim. Workplace safety was and is a small niche within employment law, but the pandemic has, naturally, prompted a flood of questions from employers in need of counsel.
Vance spoke to Lawyers Weekly editor in chief David Donovan about what he’s learned in the last year dealing with the crisis from his unique vantage point. The following is a transcript of that conversation, lightly edited for length and clarity.
You practice a lot of law dealing with workplace safety. That’s something that white-collar companies, including law firms, probably didn’t think much about until recently. How has the pandemic changed the need for this sort of legal counsel?
A question I get a lot in talking to clients is that they’ve never had to deal with hazards in their workplace before. They’ve never had to have someone wear PPE or worry about if somebody is hospitalized or passes away because of COVID and they have to call OSHA. It’s been an eye-opening experience for people who’ve never had to deal with an OSHA issue before in their entire careers. It’s not just construction firms and food processing plants anymore—it’s banks and law firms now, too. People are going to expect safer workplaces in the future, and that applies to all workplaces.
Hopefully before much longer we’ll have vaccinated our way to the end of this pandemic, but how do you think the experience of COVID might change the future of the legal profession even after this virus is gone?
I think a lot of it has to do with business management and an approach to employment in general. We have the technology, especially in white-collar employment, to work remotely—maybe not being at home all of the time, but I think you’re going to see more flexibility there, people working part time in the office and part time at home. And if you don’t offer employees some flexibility as to when and where they work, you’re going to be at a significant competitive disadvantage. People just want to be able to work at home because they can do their job a lot better outside the office. I think it was heading that way even before the pandemic, but I think the pandemic sped up that process by 5 or 10 years.
What sort of legal issues do you think will arise as a result of more people working from home?
The biggest issues are management and wage-and-hour issues. If you have people working from home, how do you keep track of that time? And some companies are going to be worried that their workers are not going to be as focused at home. How do you monitor that, and do you monitor that? The other thing is making sure that everyone has equal opportunity to work from home. You’re going to start getting some discrimination claims where people are complaining that they’re not being allowed to work from home but their colleagues are.
You talk about monitoring workers at home. What might that look like, and what sort of legal issues might that raise?
There’s technology out there already, and more could be developed. If you attend a webinar online, that can track how much you’re paying attention to some extent. Is an employee paying attention to work, and are they at the computer for X amount of time for the day, that’s the kind of monitoring that is already in place, and we’ll probably see more of that. It’s going to be an interesting issue from a privacy standpoint. Is there an invasion of privacy issue if you’re monitoring people at home, even if they work from home? I think we really don’t know yet.
What I’ve told companies is that there may or may not be a law on point, but no matter what the law is, you should always factor in two things. One, how is a decision going to impact employee relationships? If you’re monitoring people at home, how is that going to affect employee morale? The second issue is public perception. No matter that the law says, even if you do something perfectly legal, how is the public going to perceive that? The public’s perception of your brand is very valuable.
How can lawyers be prepared so that when these big events—a major piece of legislation, a new technology, a pandemic, what have you—come about, they and their firms are in a position to respond rapidly and fill the emerging unmet need for legal advice?
This is unprecedented what happened, so when it first started, everybody was in the same position, and everybody started going to the internet and looking for answers there. What we did at our firm, and it felt like it was a service to the community and the country, is we put that information out there for free. If people go on the internet and they search for something, if you have the information they’re looking for, they’re going to come to you. The concept is called inbound marketing. I think what companies can learn going forward for unprecedented situations is don’t hide behind this paywall of billable hours, because it actually ends up being less productive than giving people what they want, which is really how the internet is designed. People are going to look for the content that answers their questions, and if they need to hire someone, they’re more likely to hire the people who give them that content. The lawyers who have answers and can give them to people are going to be the ones who are most successful.
Follow David Donovan on Twitter @NCLWDonovanD