Lisa L. Smith, Business, Covid-19 Keeping Lawyers Busy

Law firms’ business gets a boost during Covid-19

As Joseph Hanna contemplated whether business has increased since the start of Covid-19, he decided to let the numbers do the talking.

“We are busier than ever,” the partner at Goldberg Segalla said. “I am very proud to say in 20 years, we have hired more associates and partners in first quarter of 2021 than in any other quarter in our 20-year history.”

Attorneys at Goldberg Segalla and several other of Western New York’s largest firms said they’ve seen sharp upticks in several practice areas due to pandemic-related issues. While court closures have slowed the process some, the increase in virtual counseling sessions has sped up other aspects of the process. That’s allowed attorneys to keep clients informed on issues even as rules meant to curb coronavirus change. They agree that a little due diligence now can help mitigate more litigation down the line.

They (might) have you covered

Business interruption insurance issues have left numerous Phillips Lytle LLP clients examining their options. Clients have been looking for the best ways to ensure they get the benefits entitled to them under their contracts, which attorney Lisa Smith said have been tested due to the unprecedented nature of the pandemic.

“Looking at the policies — in describing acts of God, some policies specifically reference pandemics and some do not,” said Smith, who co-chairs the firm’s coronavirus response team. “There’s been a wholesale examination in the past year about whether certain policies would cover Covid-related events.”

A lot of clients are coming for help to make sure they’re getting everything to which their coverage entitles them, Smith said. The wording of some deals makes the situation ambiguous, which is keeping lawyers busy.

But that uncertainty may disappear if there’s ever another pandemic. Smith said the insurance industry could very well take a step back and revise its policy language in the same way it did after the Sept. 11 terrorist attacks, when provisions were put in place pertaining to terrorist attacks.

“The industry is at that inflection point once again,” she said. “We’re already seeing that companies are carving out exceptions for pandemics so in the future they are being very clear on what they cover or, in their position, often times not cover.”

Making it safe to work

Covid-19 forced a lot of people from the workplace last year, and in the time since it’s created a lot of complications as people begin to make their way back to the office.

While this hasn’t led to much litigation, partner Amy Habib Rittling of Lippes Mathias Wexler Friedman LLP said there’s been a sharp increase in internal complaints. Many of those are being investigated as retaliatory, with employees facing discipline or termination after making complaints about Covid-19 safety protocol and claiming the two are related.

One client her firm works with recently fielded an age discrimination case, for example, in which a former employee claimed a layoff this past summer was due to age rather than pandemic-related revenue issues. Another client resolved a similar case a few months ago in which the plaintiff claimed a layoff was due to racial discrimination.

Good record-keeping goes a long way in such cases, she said. So does communication.

“Leadership might be aware, but if policy changes are not effectively communicated down to front-line managers handling the requests, that’s where the mistake can be made,” she said.

Figuring out these issues is complicated more by ever-changing regulations. Health-care regulations, for example, require employers to retroactively offer post-employment coverage to people let go before or during the pandemic.

“Now employers in the state have to go back 36 months to see who is eligible for subsidized COBRA. Those employees have to get a notice by the end of May and be offered six months of COBRA,” she said. “The pure onslaught of laws in the labor and employment space since last March — now they need to get proficient on these myriad changes to make sure they put the right policies in place.”

Worst-case scenario

In the unfortunate event someone gets sick while at work, lawyers may have to get involved to figure out who funds the treatment.

“All eyes are on potential workers’ comp claims. It’s forever been an issue, it will continue to be an issue,” Hanna said. “It’s obviously a concern for all.”

Such claims have been big business for Goldberg Segalla attorneys in Western New York and high-population areas the firm operates in like south Florida and Manhattan, he said. They’ve had to change their analysis as the science of the virus has evolved, which has led to a lot of time being spent on determining how to process such claims.

That time can be well spent, Smith said, because any claims that are determined to be caused by Covid-19 automatically are considered workers’ comp claims, avoiding potential litigation.

But employers have to protect themselves, Rittling said, to make sure employees aren’t exploiting the situation. A lot of workers’ comp and Family Medical Leave Act claims her firm has seen lately are Covid-related, and while none of them have had to be escalated to the courts yet there’s always some chance of that due to an altered rule that may inadvertently be violated.

Taking their shot

Vaccinations are now taking place in full force, giving employers another reason to consider reopening their offices.

It also opens up potential legal pitfalls related to vaccinations. Rittling said it’s been most discussed in industries such as hospitality and health care where people have to work facing customers. Current laws let employers mandate vaccinations, but none have taken that step — not because of legal concerns, but rather because of the complexities and cultural significance of doing so.

“They’re moving toward strongly encouraging and incentivizing employees to get vaccines,” she said, noting

that accommodations such as a protected disability or vaccine allergy have to be considered. “If employers want to mandate, they’re being advised to issue a rule but not have anything to do with administration of the vaccine. That puts them at less risk.”

As more people-facing industries return to work, some of the events that had to be postponed last year are coming around for another look. Smith said caterers, event sites and similar businesses that have had a backlog have tried to work around breach-of-contract issues as best they can, offering refunds and/or future discounts when they were mandated by law not to host the events they signed contracts to host.

Businesses may be able to begin looking forward to a post-pandemic life — emphasis on maybe — but that doesn’t mean they’re out of the woods just yet legally.

“It would benefit them not to be in a reactive posture going forward,” Hanna said. “If they are in need of legal assistance, they should reach out to legal teams they trust and try to be on a proactive side.”

Attorneys at Goldberg Segalla and several other of Western New York’s largest firms said they’ve seen sharp upticks in several practice areas due to pandemic-related issues. While court closures have slowed the process some, the increase in virtual counseling sessions has sped up other aspects of the process. That’s allowed attorneys to keep clients informed on issues even as rules meant to curb coronavirus change. They agree that a little due diligence now can help mitigate more litigation down the line.