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  • March 19, 2020

    Counseling Your Clients During the Coronavirus Pandemic

    In this time of the coronavirus and COVID-19, clients are looking to attorneys for guidance on preparing and responding to this emergency. Nilesh Patel provides tips and guidance for attorneys to discuss with their clients.

    Nilesh P. Patel

    business woman talking on phone

    At this point you have heard plenty of news and updates about the coronavirus and COVID-19. The updates change daily and even hourly, as city, state, and the federal governments work to contain the spread of the virus, which is highly contagious and can overwhelm the health care system’s ability to cope and treat affected patients. As of March 18, 2020, cases were reported in all 50 U.S. states.

    The risk of a larger outbreak is heightened by misconceptions that if someone is not showing symptoms, they are not at risk of either contracting the virus or transmitting it to others.

    Governments have responded with various plans, from closing schools, limiting restaurants to delivery and takeout orders, ordering bars to close, and even imposing nighttime curfews and shelter-in-place orders to limit social interaction that can help the virus spread.

    No doubt clients are looking to attorneys for guidance on preparing and responding to this emergency, which not only threatens public health and safety but the financial health of businesses and their staff. In turn, these pressures take a mental health toll on those affected.

    This brief article addresses major topics and guidance that attorney can discuss with clients. The topics are by no means comprehensive, but are a starting point for communications or conversations with business clients.

    Permit Liberal Use of Sick or Other Leave Time

    If staff or their families are sick, encourage staff members to stay at home, without penalty for absences, until this emergency subsides.

    Of course, tell staff they must follow call-out policies, so employers can manage staffing patterns. If staff members or their families contract the coronavirus or have recently traveled to a country regarded as a coronavirus hot spot, health officials may order the person to voluntarily or mandatorily be quarantined.

    Find Ways to Stretch Out Income

    Income continuation is a large factor in whether staff members can afford to stay at home as a precaution. Because of this emergency, employers should be liberal with use of leave accruals and allow sick time or vacation time to be used, if it helps maintain income for staff. Allow a negative balance of a week or two, to the extent the organization can afford it, and let staff earn that time back.

    Nilesh P. Patel Nilesh P. Patel, U.W. 2002, is a Nonresident Lawyers Division member residing in New York. He focuses on employment, labor, and human resources issues.

    Tell staff to plan for the next two to four weeks. For previously earned sick or vacation leave, as opposed to any new mandated leave, it would be better for staff to use a reduced leave benefit, and mimic 50% of regular pay, rather than burning through their accruals by using a whole day at a time.

    Of course, businesses will want to be clear that these changes are in response to an emergency, and should not be considered a precedent or permanent modification for leave use rules.

    In addition to precautionary use of leave, keep track of new federal or state laws that require additional mandatory time off during this outbreak.

    Allow Remote Work

    Allow staff who are not necessary to be on-site to work from home, using email, videoconferencing, etc. This will be a way for staff to continue working while protecting colleagues, clients, and the community.

    If staff do work from home, develop guidelines for how the work will be done. What files can be taken off-site? What must be kept on-site? What are the hours of work and will there be a time log?

    Unless overtime is authorized or intended, staff that are nonexempt should be informed they are not to do any work (review emails, memos, answer phone calls) outside of the regular workday.

    Staff that are exempt from overtime are entitled to their full weekly wages even if they only work a partial day – of course, they may be reprimanded if they are not working the full day. Employers should be reminded not to make deductions in pay from exempt workers without checking if the deduction is proper – do not risk the exempt status and be subject to overtime claims.

    Staff should not use public Wi-Fi to access work servers. In fact, staff should not be using a public space to work, if the whole point of these measures is to maintain social distance from others.

    If staff are injured while performing work duties remotely then they will still need to file a workers' compensation claim.

    Consider Impact of School Closures

    School closures are likely to be a nationwide response to minimize interactions among the public. In turn, staff may need to stay at home to care for children.

    Even essential staff, those that need to be at work or on-site, may be impacted by the closures. They may need staggered hours or flexible schedules to meet responsibilities at work and at home. Creative child care options may also need to be explored.

    School closures and inability to work full time may be another reason staff will be looking for income continuation, via their leave benefits.

    Considerations for Reduced Hours or Temporary Layoffs

    Businesses – especially retail, food service, and public meeting spaces – may need to consider reduced hours or temporary layoffs. Staff may be able to lessen the financial blow by immediately applying for unemployment benefits, as states are starting to waive waiting periods.

    One way to support staff during layoffs is to continue health insurance coverage for them, so they can maintain their savings and limited income for other essential costs, such as rent, food, and medical treatments.

    Health insurance continuation also means laid off staff members will not have to choose between essential expenses and seeking medical care, or will not end up with medical debts that lead to a personal bankruptcy filing. Employers can choose to pay the full COBRA/health continuation premiums in order to maintain health insurance coverage for staff.

    Keep in mind that under state rules, personnel policies, or collective bargaining agreements, staff with accrued vacation balances may be entitled to payment when they leave employment.

    Review Insurance Coverage

    Businesses should check business insurance policies, on whether lost revenues will be covered when closures are caused by infections or mandated government orders. Review whether coverage or loss exclusions exempt a pandemic, as an act of god or other major emergency.

    Request Rent Deferments and Abatement

    One way to generate savings would be to request a temporary reduction, deferral, or rent abatement from landlords. The savings can help the organization maintain cash flow, payroll, or can be used to offset leave expenses or other financial supports for staff.

    Look Into Funding Assistance

    Check with the state or federal Small Business Administration or Economic Development agency for low cost loans or grants, in order to maintain operations.

    Increase Internal Communications

    Employee communications will be critical. Organization should take the time they need to sort out their challenges, abilities, and barriers. Staff will be anxious for direction and leadership, and a response should be prepared, one that does not overpromise outcomes but at the same time addresses major questions and concerns.

    Plan Ahead

    Employers should make short, medium, and long-range plans, especially about revenue and expense projections and staffing patterns. Multistep planning will be essential because it may take 12 to 18 months to fully eliminate the risk from this coronavirus. Short range plans can be for one fiscal quarter, medium range plans can be for up to three fiscal quarters, and long-range plans can be for up to six fiscal quarters.

    Where to Find Help for Yourself

    While these will be tough times for clients and their staff, there will be a lot of pressure on attorneys to provide advice that will likely adversely affect the lives of many people.

    Attorneys must engage in self-care through these times, and can reach out to the State Bar of Wisconsin’s lawyer assistance program, WisLAP, which provides free confidential assistance to attorneys and their families in coping with mental health challenges or other stressors. State Bar Members and their families can access WisLAP’s 24-hour help line at (800) 543-2625.

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    Nonresident Lawyers Blog is published by the Nonresident Lawyers Division and the State Bar of Wisconsin; blog posts are written by division members. To contribute to this blog, contact Emily Kelchen and review Author Submission Guidelines. Learn more about the Nonresident Lawyers Division or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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