COVID-19 and the US legal profession
The COVID-19 health and economic crisis has already had a considerable impact on the US legal profession and will continue to do so for the foreseeable future. With the unemployment rate reaching 14.7% in April — the highest since the Great Depression — the US faces significant challenges in navigating a precarious economic landscape. At the same time, employers and employees of all kinds are grappling with a new relationship to work, ranging from where and when we work to how we work and how we collaborate with others.
While lawyers have been creative in adapting to serve clients’ needs, the legal profession is not immune from the trends emerging in the employment sphere because of the pandemic. We have observed a number of trends that lawyers will likely encounter in their own firms and offices in the months to come.
Attorney and staff layoffs and furloughs
Legal publications have been riddled with announcements that law firms have reduced the size of their workforce and have cut pay and benefits. Even some of the top-rated firms have engaged in mass layoffs and furloughs of attorneys and staff, slashed or deferred compensation, reduced hours and changed their hiring patterns.
In our experience, sudden, large-scale job changes of this nature are ripe for discrimination and other illegal activity. Employers may take shortcuts in complying with the law. Furthermore, when employers choose among workers for layoffs, transfers and pay cuts, underlying biases and presumptions emerge, and employers can use such mass measures as cover for discrimination and retaliation. Structural inequities in an employer’s policies and practices can crystallize in a disparate impact on protected categories of workers. Attorneys must be aware of the ways in which even the most successful legal institutions can fall short of their obligations to employees.
The legal profession is no stranger to structural inequities and discrimination. Our attorneys have seen firsthand the ways in which law firm cultures, compensation systems and penalties for taking leave have led to serious inequities for female attorneys and attorneys of color. The COVID-19 pandemic’s impact will only serve to highlight these issues.
With work from home increasing, even more lawyers face the challenge of balancing client and family obligations. As a result, biases around work-life balance will come to the forefront, with caretakers perceived as insufficiently committed to their firm and clients. While these trends have largely impacted women, in a COVID-19 landscape, more attorneys will have to balance personal and familial health concerns with work requirements and will require reasonable accommodations from their employers.
Since COVID-19 is known to have a particularly devastating effect on those with pre-existing conditions, the pandemic will likely also give rise to issues concerning the ways in which employers target or discriminate against workers on the basis of disability. Because the pandemic presents particular challenges regarding disabled workers and the protections provided by statutes such as the Americans with Disabilities Act (“ADA”), the EEOC has issued new guidance on the application of the ADA and related laws. Under this guidance, employers may generally inquire about and screen for COVID-19 symptoms and may need to accommodate employees’ self-identified disabilities as they intersect with COVID-19-related concerns. However, employers are prohibited from probing into employees’ underlying disabilities, such as by asking them to disclose whether they have chronic health conditions or are immunocompromised.
Employers also should not single out disabled workers for disparate treatment. Relatedly, employers will continue to face requests for family and medical leave under the federal Families First Coronavirus Response Act (“FFCRA”) and New York’s COVID-19 sick leave legislation, as well as existing federal, state and local leave laws. Employers must ensure compliance with all such laws and do so in a gender-neutral manner. We anticipate that these issues could generate significant litigation as employers adopt measures which ostensibly protect workers but implicate their privacy and disability rights.
In addition, attorneys may be affected by general trends in employment discrimination. First, there has been a substantial rise in discrimination against Asian and Pacific Islander populations because of biases and misinformation about the pandemic. For example, the New York City Commission on Human Rights reports that claims of anti-Asian bias and harassment were over 12 times higher between February 1 and May 15, 2020 than during the same period in 2019. The FBI has warned of a surge in hate crimes. It is reasonable to expect that these trends have carried over into the workplace and will affect those returning to work. Lawyers — as employers and employees — must remain mindful and take appropriate corrective and preventive action.
Second, because COVID-19 significantly impacts older Americans and because employers are apt to use layoffs to target older workers and reduce the age of the workforce, lawyers should be wary of any actions that have a particular impact on older attorneys or staff.
Major changes are coming (and some have already arrived)
Questions remain on how to adapt the legal work environment to new conditions. Most immediately, the practice of law is increasingly moving online, with the profession being forced to embrace new technology as attorneys attend hearings and depositions through remote means. Law firms will need to adapt to this dynamic by providing accommodations to attorneys and staff whose disabilities or personal circumstances create challenges to remote work.
Employers also have a duty under occupational health and safety laws and regulations to maintain a safe and healthy work environment free from recognized hazards. Employers, including law firms, will need to navigate their return to workplace life while abiding by public health guidance to institute responsible infection control practices such as social distancing. In places hard-hit by COVID-19, attorneys may continue to work remotely or may return to office life that looks considerably different from the one they left in March. This may include staggered schedules and other measures to reduce the concentration of employees in the workplace.
Law firms also might require employees to wear personal protective equipment (“PPE”), and may be obligated to provide PPE as an accommodation to disabled workers. Under ordinary circumstances, taking an employee’s temperature would be a medical examination in violation of the ADA but under recent EEOC guidance, employers are legally permitted to do so for purposes of monitoring and limiting the spread of COVID-19. Employee health information is, of course, subject to strict confidentiality. Attorneys and other legal sector workers will need to adapt to this new environment while remaining cautious of the ways in which the pandemic could lead employers to act in ways that are unjust and against the law.