In-house counsel play a critical role as businesses reopen, say lawyers
McCarthy Tétrault LLP has released a white paper which analyses the three distinct phases of COVID-19 and offers insights into related issues that are impacting in-house counsel and other business leaders. The white paper entitled Business as unusual: New Realities, New Possibilities: A Roadmap for Business Leaders, identifies challenges and opportunities during the three phases which are described as the lockdown phase, the re-opening phase and the post-vaccine phase.
The white paper refers to the need to constantly monitor regulatory changes as the pandemic crisis continues to impact businesses across all industries and all sectors of the economy.
“One of the things we are finding is that it is critical to stay on top of guidance and legislation announced by the various levels of governments and to be able to navigate through the federal, provincial and various municipal pieces of legislation and regulation, and to ensure compliance in a practical way that makes sense,” says Lara Nathans, partner and industry strategy leader at McCarthy.
“We deal with a lot of businesses that operate nationally, so it is critical to address requirements of all three levels of government, including different municipalities - for example Toronto announced mandatory masks but some jurisdictions haven’t done that yet. We are either looking for something harmonised or trying to vary it to where the different outbreaks are,” says Nathans.
In-house counsel play a critical role in supporting all areas of the business through the many transitions resulting from the crisis.
“In-house counsel have a role to play in ensuring that all the moving parts within the business that are impacted by COVID-19 - such as human resources, IT and communications - are responding to the pandemic in a way that is consistent with mitigating legal risk and consistent internally with other departments,” says Trevor Lawson, partner in the labour and employment group at McCarthy. In-house counsel at international businesses will also have to deal with counterparts in other countries to ensure the Canadian operation is adhering to the international COVID-19 response plan, Lawson adds.
The white paper discusses some of the challenges around the re-opening phase as many businesses slowly begin to resume operations. Nathans warns that issues such as mandatory mask-wearing for employee and customer safety will continue to be important, and how businesses deal with reopening may result in compliance issues, as well as reputational risk considerations.
"In-house counsel have the opportunity to partner with the business and develop novel approaches, seen by way of example with the increased shifting to digital platforms and curbside pick-up, and other approaches to providing services in unique, safe ways," she says.
Lawson comments that in-house counsel will have a role to play in reviewing all the things that need to be done in the workplace to prepare for reopening, which may include identifying and co-ordinating who within the organization will be involved in the re-opening plan, determining when the physical workplace will re-open - and whether that should happen within stages - and considering whether their business has internal expertise or requires external consultants to assist in this process.
“The key word we are hearing from in-house counsel is flexibility. The best laid plans will require some flexibility to deal with a situation that is very difficult to predict,” says Lawson.
Lawson advises business leaders to ensure they are addressing health and safety considerations to protect employees, customers, buyers, vendors and any others who may come into the physical workplace, from COVID.
The white paper also refers to the growing concern over privacy issues, particularly in regard to the collection of personal information to contain the spread of COVID-19.
As we return to the physical workplace in the next few months, privacy issues will likely shift to the kind of questions that can be asked of individuals as part of an entry screening process, as well as things like temperature screening and the responsibility for the storage of information collected as part of these screening processes, Lawson anticipates.
“Inevitably, someone will test positive which will give rise to privacy issues around how much and to whom information can be released regarding the individual who has tested positive,” he says. Companies that are able to navigate privacy issues while protecting the health of employees will have a key differentiator to attract top talent, the white paper suggests.
Litigation risk is another concern identified in the document. General counsel need to understand the primary sources of litigation risk, which may include occupational health and safety claims from COVID exposure, employment disputes from employees who have been laid off, and human rights disputes, Lawson warns.
“Those are the claims that we are starting to see as we move deeper and deeper through the recovery process,” he says. “The ultimate goal of the general counsel should be to minimize economic and emotional incentives that arise from litigation and ensuring at the outset that they adhere to legal obligations, government guidelines, industry standards and best practices and ensure that they have a plan in place should litigation arise.”