BP Perspective Insights from a Business Partner

Pandemic Liability Protections Aren’t Immunity

Demonstrating proof that your law firm has complied with all applicable COVID-19 workplace safety protocols will be critical to a defense against lawsuits, insurance claims and affordable liability insurance coverage in the new normal. Like any risk management strategy, understanding the when, why and how can be daunting — especially in a scenario like an unprecedented pandemic, when guidelines and regulations were ever-changing and differed from state to state.

David Luter
David Luter

Consultant
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Even though many states have enacted liability protection laws, it doesn’t necessarily mean there is complete immunity from potential lawsuits. Furthermore, insurance underwriters are tightening qualification requirements for businesses that are contracting and renewing general liability insurance. It is crucial to verify and document proactive measures taken to protect the workplace and the community as a whole. Some businesses we’ve worked with have admitted they fear a review and audit about what might have been missed. Below are challenges we see and how to begin rectifying them in your own legal organization.

PANDEMIC APATHY AND FATIGUE

March marked one full year since the pandemic began wreaking havoc on operations in law firms and businesses of all kinds. Employees and business leaders are simply tired of dealing with the added burdens and feel they’ve done everything they could to prevent workplace exposure. Unfortunately, this is not sufficient for defending a lawsuit in case there are exposures. This leads to the fear that many leaders experience when approaching an audit of protocols enacted in their own workplaces.

FEAR OF THE UNKNOWN AND WHAT PROTOCOLS MAY HAVE BEEN MISSED

Even if your organization has done nothing, rectifying missteps or other noncompliant actions can help counter any assertions or claims that there was a direct intention of harm by the organization’s failure to act. If your firm is already documenting protocols that were taken, this will help leaders recognize and immediately correct any action items they missed. Again, it helps solidify that the organization was not failing to act intentionally.

“One of the biggest obstacles law firms — and many businesses — face in addressing this critical attention to detail is bandwidth.” 

Things that should be documented include health-screening protocols, policies, personal protective equipment requirements, disinfection regimens and social distancing measures. Firms should also document what employee communications plans they developed, what return-to-work policies look like and any sick-leave protocols that they have changed or created during the pandemic.

LOCAL GUIDELINES AS MOVING TARGETS

Especially for law firms that have multiple locations across the country, knowing and having documented regulations and guidelines for particular states can be challenging. This challenge is further compounded by the fact that these state-by-state regulations and timelines have changed throughout the pandemic and can be difficult to accurately locate. Administrators in law firms who are worried that a well-planned safety strategy may not address an individual state’s recommendations should document as much background as possible and continue to do so until the pandemic has subsided.

ALA Virtual Master Class: A Framework for DEI&A
ALA Virtual Master Class: A Framework for DEI&A
 

INTERNAL BANDWIDTH DOESN’T SUPPORT THE DETAILS REQUIRED

One of the biggest obstacles law firms — and many businesses — face in addressing this critical attention to detail is bandwidth. Legal managers and operations leaders already have a robust list of day-to-day tasks that make this increased focus overwhelming. Whether you choose to hire a part-time role or engage a third-party business partner versed in change management, regularly documented protocols and a solid plan to follow will pay dividends if and when a lawsuit is filed.

Legal teams and risk management experts know there are often surprises along the way, but they also know that preparing for the worst and having accurate records can help alleviate future stress, ensure compliance and ease employees’ minds about the health and safety of their workplace. It’s also valid that many firms may not have the administrative bandwidth to make this kind of record-keeping possible in the capacity it requires. The challenges the past year has created, especially for large firms with multiple locations, may require a consulting firm. Choosing to document more thoroughly and developing a plan — or hiring a consultant — isn’t an admission of guilt but a powerful, proactive response to ever-changing situations in our current business environment.

 

About the Author

Dave Luter is a Consultant with more than 29 years of experience in information technology management and business process reengineering. His experiences have been split between health care, the public sector and manufacturing/distribution in both industry and consulting environments. Luter’s expertise includes project management, business development, workflow analysis, data capture/analysis, systems design/development, web design/development and implementation of clinical applications. He also has an in-depth knowledge of hospital operating room procedures centered on the design, development and analysis of reporting metrics.