The next CLM exam is scheduled for November 16, 2021. The CLM certification program allows a qualified Legal Administrator to demonstrate, through an examination process, a mastery of the core areas of knowledge identified as essential to the effective performance of a principal administrator. Regardless of the stage in your career, becoming certified adds a valuable dimension to your professional development. Consider taking the test and becoming CLM certified!

ALA Chicago is quickly gaining recognition and popularity for its Study Group, as ALA members from around the country are welcome to join the group. More importantly, the pass rate for members coming from ALA Chicago’s Study Group is high. ALA Chicago chapter members who join the Study Group receive the following added benefits:

•      Free registration into the Study Group.
•      The chapter will purchase the CLM Study Guide for you ($259 value).
•      If you pass the CLM exam, the chapter will award you a $250 educational stipend.

The next Study Group will start on July 14, 2021. Our CLM Director Rita Nielsen will host an informational session regarding the CLM Study Group on June 23 at 10:00 am. Registration and more information regarding all the educational sessions offered to the Study Group participants can be found at:  https://alachicago.org/page/Certification

You do not have to take the CLM exam in order to be in the Study Group. Some members join to learn, get their feet wet and then perhaps take the exam at a future date. Do not delay … register for ALA Chicago’s Study Group!

If you are like me, your colleagues at the office are asking about the safety of public transportation, especially Metra. And if you are like me, you have not ridden Metra in recent months so you have no current first-hand experience.

So I attended the Safe Return to Work Summit in March conducted by Metra and the Building Owners and Managers Association of Chicago (BOMA), which brought together over 1,100 professionals from Chicago businesses to hear about getting back to our offices safely. The summit showcased the safety measures building owners and managers had taken and the efforts Metra had made to improve safety for its ridership. For me, the speakers who shared building measures were only mildly interesting because my building manager, like most building managers, has generally done a great job of communicating with us as a tenant. More interesting was Janice Thomas, Chief of Staff for Metra, who shared facts about public transportation and its supposed role in spreading COVID-19, as she covered an impressive list of all the measures that Metra had taken—and continues to take—as the pandemic evolves. She shared the following:

• Last year researchers called out public transportation as a major cause for spread; this has proven to be wrong. Using the analogy that it was originally also claimed that air travel was not yet safe, she explained that by September collective knowledge was that flying was safer than grocery shopping and riding public transportation is safer than originally thought.
• Months of data collection has shown that there is no proven correlation between public transportation and spikes throughout the pandemic in any major metropolitan area. You can view this yourself in a link to the summit recording below.
• Metra is safe because rides are generally of short duration, masks are required, cars are not full, and there are enhanced cleaning procedures and air flow. Here’s what Metra has done and continues to do:
  • refresh air 15 times per hour rather than the 12 times required;
  • make a stop every 5.2 minutes which floods cars with more fresh air;
  • use hospital grade MERV 13 filters;
  • require face coverings which Metra made mandatory for all employees and riders once this became Illinois law;
  • allow only one person per seat;
  • allow only 35 passengers per car or roughly 50%, and when reached they add more cars;
  • created an app that tells riders what the occupancy rate is in a given car so riders can select a car of their choice without walking through all of the cars;
  • clean and sanitize meticulously following the strictest CDC guidelines;
  • provide hand sanitizer in all cars;
  • encourage riders to use the Ventra app for touchless ticketing (and have about 60% of people doing so as of March, and this is increasing); and
  • measured confidence of safety in riding and found it has grown over the past year among “regular” riders (i.e., riders before pandemic and still riding).

Can we trust Metra on these claims? I shared this list with my Metra riding colleagues, many of whom have done so since we reopened our firm last August. I have found that most everything, but for face covering enforcement, is strictly in place and makes my colleagues feel safer about riding Metra. I have also found that just having this list available has made it easy to broach this topic while also providing people with factual information—all of which is appreciated so they can check it out for themselves. Even Dr. Robert L. Murphy, a Northwestern Medicine infectious disease specialist who has been speaking about the virus every weekday on WGN-TV Morning News, was impressed with Metra’s efforts and stated at the summit that he had changed his previously critical opinion of commuter train travel based on the information presented. To that end, the measures Metra has taken to make commuters feel safer seems to be working.

Interested in more? You can access the WebEx recording here to the whole Summit and/or you can access and download materials and instructions here. And, a big thank you to Betsy Kopczynski and her contacts at BOMA for helping with this.

By Kathleen O’Donnell

Employees are increasingly demanding flexible work schedules - and employers are starting to give them this option. In fact, almost 80% of the US workers would choose a job that offers a flexible work schedule over one that doesn’t. Flexible work schedules benefit employees because it gives them increased freedom to arrange their work around their lives, not the other way around.

But it has plenty of benefits for employers as well - it can increase retention, productivity, diversity, and employee engagement. It’s one of the most popular employee benefits. So how can you design flexible work schedules that work for your business and your employees? Let’s find out.

Types of Flexible Work Schedules

A flexible schedule for employees can take a lot of different forms. You don’t need to stick to just one - you can experiment to see which one fits your business needs best and which ones your employees find the most satisfying. You can also incorporate several different types of flexible schedules to meet the needs of all employees.

1. Flextime Work Schedule

Flextime is a flexible schedule that allows workers to have more freedom in choosing their hours of work. It can also give employees the ability to change their working hours from week to week, depending on the flow of work and needs. It’s pretty common for employers to set some guidelines around flextime. This often means determining core hours - saying that employees must be working 9 am-3 pm, and allowing them to come in earlier or leave later.

Flextime work schedule lets workers choose when they are most productive to work or avoid busy commuting times. Some workers may choose to start their workday at 7 am and finish at 3, so they can pick their children up from school, and others may choose to start work at 9 am because they work better later in the day.

Flextime schedule benefits the employer as well because you still have core hours to hold meetings and collaborate while also having workers available at a wider range of times. For example,  Liberty Mutual Insurance-offers core hours from 9 am - 3 pm. Employees may choose whether they would like to come in earlier or work later, depending on their daily obligations and home commitments.2.

2. Compressed Workweek Schedule

A compressed workweek schedule allows employees to work their 40 standard weekly hours over a time period less than the usual five full days in one week or 10 days in two weeks. This could look like working one extra hour Monday-Thursday and having a half-day off every Friday.

It could be working four ten-hour days and having an extra day off every week. Or it could be working 80 hours in nine days and having the tenth one off to have a long weekend every other week.

Compressed workweeks are very attractive options for employees who have care responsibilities for their children or parents. It’s attractive for employers because if they move their whole organization to a four-day workweek, they can save money on office expenses. Some offices do compressed workweeks in the summer, so employees can have long weekends when Fridays are quiet without using vacation time up.

Microsoft Japan instituted a four-day workweek in the summer of 2019 - while still paying employees for their usual five days. Employees were 40% more productive, electricity costs fell 23%, and even printing went down 60%. Everyone benefited from the arrangement.

3. Part-Time Work Schedule

Part-time schedules are an established form of flexible working schedules. Employers may agree to let an employee work part-time if they don’t want to lose that person’s skills, but the employee cannot commit to working a full-time job. This kind of arrangement is usually only available to certain employees who have proved their value to the business over a long period of time because moving a professional office to a completely part-time basis would be ineffective.

But it’s a good method to retain valued employees who have children or are near retirement age, and want flexibility.

In 2019, over 26 million people in the US were employed on a part-time basis. Starbucks is an innovator in the part-time workspace - they offer generous benefits, including health insurance, free tuition, and fertility benefits to employees who work at least 20 hours per week. This helps reduce turnover in a field where it is typically high.

4. Remote Working Schedule

Also called telecommuting, working remotely means the employee does not come into the office regularly. This could be an arrangement where the employee works from home 2-4 days per week or works entirely from home. It can even mean the employee works from a different state or a different country. Remote working arrangements are becoming more common these days, as many jobs can be done from anywhere there is a strong internet connection and a fast laptop.

Remote working arrangements let employees avoid long commutes and remain comfortable at home (and save money on those fancy office outfits). Work from home flexibility can also go along nicely with other flexible working arrangements, like compressed workweeks. And having employees working from a variety of places instead of one big office can save employers serious money on maintaining a huge office, and also provide backup if a power outage or natural disaster happens around the office.

When the Chinese travel company Ctrip started offering a remote working option to employees, productivity rose by 13% while work satisfaction rose and attrition decreased. 

How to Design a Flexible Work Schedule

For employers, declaring that they’re going to move to a flexible work schedule design so that employees can better balance work and life is an easy move - it can seem like a quick win when tough. But actually implementing and managing that flexible schedule is a little bit more tricky.

First, you need to consider both the needs of the organization and your employees' needs and how to balance them.

• Does the type of work your organization does lend itself easily to flexible working hours? If you’re in a field where your customers expect to be able to get a fast response during normal working hours, you will need to have guidelines on flexible working so that your business still runs smoothly.
• How will you manage who is allowed to take advantage of these perks and whose roles are less-suited? You may experience some pushback from employees who don’t have a job role that allows them to work remotely or on a flexible schedule.
• It would be best if you made the business reasons for your decisions clear so that everyone understands why the system is set up the way it is.
• Fields where employees need to meet with clients face-to-face and collaborate with coworkers frequently need more thought if moving to a remote work option.
• Will employees be expected to come into the office at certain times?
• Will you need to institute a type of standard calendar so that you will have good attendance at important meetings?
• How will you keep remote employees engaged?
• A final consideration when setting up flexible working schedules is the laws in your state and country.
• While letting employees move to another area while working remotely sounds like a complete win, you might be putting your company on the hook for some complicated taxes.
• And many places have strict laws in place about allowing flextime or compressed schedules, especially when employees are paid hourly.

Advantages of flexible work schedules- Why are they Important for Employee Happiness

Most employees expect their employer to help them balance their work commitments with the rest of their lives - and flexible work schedules are a great way to help them do this.

Increasing Employee Happiness

Employees who feel they have more autonomy over where or when they work are happier and more loyal. A 2019 survey by FlexJobs found that 80% of employees said their loyalty would be stronger to their employers if they had more flexible work options.

Since retaining employees is good for your bottom line, investing time and thought into creating flexible work options can pay off in a big way for your business.

Increasing Employee Productivity

Employees are also more productive when they work flexibly, according to Robert Half. That’s because, with the ability to get work done when or where it works best for them, they can focus more on the tasks at hand and get more done in the same amount of time.

Saving the frustration of the daily commute or the unproductive final hour on Friday afternoon in the office is mostly social, which means they can get right down to work and then back to the rest of their lives.

Considering All Sides of Flexible Work

Of course, like any good benefit, flexible work schedules benefits come with a few things to think about for employers. It’s important to work hard to keep your remote employees happy, to ensure your business runs smoothly and is in full compliance while employees work flexibly, and to be sure you’re continually evaluating how your programs are working as they go.

And if you find you can’t offer flexibility for some of your workers because the nature of their jobs isn’t flexible in when or where they work, get creative! You can think of other ways to be flexible about work, even if employees need to stick to regular hours at a regular desk.

Xoxoday predicted that 2020 would be the year of the shift to remote and flexible work - and that’s definitely been true. In fact, the trend is only accelerating, so don’t get left behind in the dust. Keep ahead of the game and you’ll keep your employees on the job, happy and engaged, for many years to come.

Keeping Even Your Flexi-time Employees Engaged

Are you looking for more ways to keep your employees engaged? A flexible work schedule is just the beginning. Empuls by Xoxoday gives you solutions to solving the engagement puzzle-like recognition programs, pulse surveys, and more - so you keep your valued employees happy and your business booming.

As vaccine distribution becomes widespread, and employees begin to return to work, we continue to field questions related to return-to-office plans in a post pandemic world. We previously compiled a list of FAQs, addressing COVID-19 safety protocols ( here, here  and  here) that should be considered as the workplace opens for business. Below are some additional, and recent, considerations related to this topic.

1. When employees begin returning to the office, can we require employees who have not received the vaccine to stay home and continue to work remotely?

Generally speaking, yes. Based upon EEOC guidance, an unvaccinated employee may pose a direct threat to others in the workplace . As a result, employers can likely require an employee to work remotely if they have not yet received a COVID-19 vaccine—as long as such requirements are consistent with the employer’s obligation to provide reasonable accommodations under state and federal laws, including the ADA and Title VII.

Employers can legally ask their employees whether they have been vaccinated or not. However, legal concerns may arise if an employer inquires into an employee’s decision to not receive the vaccine. Under the Americans with Disabilities Act (ADA), an employer’s questions must be “job-related and consistent with business necessity.” Thus, additional inquiries by the employer are likely not permissible.

Any COVID-19 policy must yield to and comply with federal and state workplace laws, including the ADA and Title VII of the Civil Rights Act of 1964 (Title VII). The policy must accommodate employees with disabilities and employees with sincerely held religious beliefs. If the workforce is unionized, the employer may also need evaluate its current CBA and/or negotiate with the union before requiring a vaccine. Similarly, numerous states have recently introduced legislation to prevent employers from discriminating against employees who choose not to be vaccinated. Husch Blackwell continues to provide up-to-date coverage of  state and local COVID-19 legislation here.

2. To promote a healthy and safe workforce, can employers establish separate workspaces for vaccinated and unvaccinated employees?

Initially, in the ever-changing world of COVID-19 infection rates, employers should continue to follow the guidance established by the CDC and state/local health departments to determine risks posed to their workforce. The CDC currently states that fully vaccinated individuals can socialize with other fully vaccinated individuals as well as unvaccinated individuals with low risks for severe COVID-19 reactions without wearing a mask or social distancing.

It is still recommended, though, that even fully vaccinated individuals take precautions while in public settings, including work: wear a face mask, practice social distancing, etc. Therefore, employers should develop a return-to-work policy that contemplates safety precautions (i.e. when employees should wear masks and in what areas, etc.) for all employees.

In regard to the physical separation of vaccinated and unvaccinated employees, employers should exercise caution when electing to implement such a policy to avoid disparate impacts upon individuals requiring accommodations. Additionally, any such policy will need to be justified by a business necessity.

Ultimately, this is a question of can and should. Can an employer establish separate workspaces? Possibly, if it does not result in different treatment of those requiring accommodation and is justified by a business need. Should an employer implement such a policy? Probably not, as it invites possible claims and may negatively impact employee morale.

3. If an employee travels, what safeguards need to be taken? Can there be different safeguards for individuals who have been vaccinated?
With summer vacations approaching, this will likely become a more prevalent consideration for many employers moving forward. Based upon current EEOC guidance, employers can devise appropriate safety protocols related to travel in light of the direct threat posed by COVID-19. And, generally, employers can develop varying company policies depending on whether the worker has been vaccinated or not based upon current CDC guidance.

However, employers should strongly consider state and federal workplace laws, and the potential unequal impacts of any such policy. In addition, employers should also assess the negative effects of implementing different workplace rules for vaccinated and unvaccinated employees—such as harming workplace morale and invite complaints of unfair treatment.

According to the CDC, fully vaccinated travelers are less likely to contract and spread COVID-19. Thus, those that are fully vaccinated can safely travel within the United States without self-quarantining and getting tested before or after travel. The CDC also provides travel recommendations for travelers who are not fully vaccinated. It is recommended that unvaccinated travelers get tested three to five days after travel and self-quarantine for up to seven days. If a traveler does not get tested, it is recommended that the traveler self-quarantine for at least ten days after travel.

As discussed, employers can legally ask whether an employee received the vaccine. Likewise, an employer can also require employees to disclose work-related as well as personal travel plans, provided the inquiry is equally applied to all employees and consistent with business necessity. Hence, a reasonable safety protocol might require all employees to report whether they have been vaccinated and their travel plans. An employer could also require all employees to confirm that they are not experiencing COVID-19 related symptoms before returning to work after travel.

Contact Us

If you have any questions about your obligations regarding COVID-19 return-to-work issues, contact Tyler Hibler or your Husch Blackwell attorney. This information is intended only to provide general information in summary form on legal business topics of the day. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legal advice should be sought in particular matters.

Infection disease experts have a saying: Vaccines don’t save lives, vaccinations do. As vaccinations are now available, and with the Biden Administration’s goal of 70% in reach, employers eager to get back to the way things were may want to mandate vaccinations. Yet, it has been reported that a sizeable number of Americans are hesitant to take the vaccine, and news of some adverse reactions may give rise to more angst.

EEOC Guidance: A Timeline

In 2009, during the H1N1 pandemic, the EEOC issued guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” Beginning in March 2020, the EEOC began updating that guidance to address the burgeoning coronavirus pandemic. See “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” On December 16, 2020, the EEOC added FAQs specifically addressing the issue of vaccinations in the workplace. On May 28, 2021, the EEOC updated its FAQs once again.

The EEOC’s current guidance makes the following critical points related to the EEO laws it administers:

• Vaccines are not medical examinations under the Americans with Disabilities Act (ADA).
  
• Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA.
  
• Certain vaccination pre-screening questions might constitute a disability-related inquiry.
  
• Employers can make vaccination mandatory under the ADA (with exceptions), Title VII (with exceptions) and the Genetic Information Nondiscrimination Act (GINA).
  
• Employers can bar unvaccinated employees from physically entering the workplace (with exceptions).
  
• Employers can offer incentives to employees to get vaccinated (i.e., to provide proof of vaccination to the employer) – and a higher level of incentives if they don’t administer the vaccine.
  
• Employers must comply with federal nondiscrimination laws when offering voluntary vaccinations to employees.
  
• Employers should process any employee request for a reasonable accommodation through the regular ADA/religious accommodation interactive process, regardless of the individual’s vaccination status.
  
• Employee records related to vaccination are confidential medical records under the ADA.
  
• Disclosing that an employee is receiving a reasonable accommodation is unlawful.

Mandating Vaccination

A Vaccination Is Not a Medical Examination

Vaccinations are administered to protect everyone from something (in this case, COVID-19). Unlike a medical examination, such as a blood test, they do not seek personal information about a specific individual’s health. Therefore, per the EEOC, vaccinations are not medical examinations and can be required to return to the workplace (with exceptions). This finding is important because the standard that must be met for requiring an employee to have a medical exam is significant.

Proof of Vaccination Is Not a Disability-Related Inquiry

The EEOC states that simply asking for proof of the vaccination is not a disability-related inquiry that violates the ADA. Additionally, because such proof is not covered by the ADA, the EEOC states that employers may offer an incentive to employees to voluntarily provide documentation of their vaccination status.

However, while an employer can require proof, they should take care to avoid inadvertently receiving disability-related information while doing so. The EEOC suggests that an employer “may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.” Additionally, the recipient of the proof should not ask any supplemental, health-related questions such as why an employee did not receive the vaccine, as those questions could elicit information about the employee’s disability.

Vaccinations Can Be Required Under the EEO Laws

As the EEOC states, the “ADA allows an employer to have a qualification standard that includes a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.’” Such a safety-based qualification standard can include a vaccination requirement. As a result, employers can bar unvaccinated employees from physically entering the workplace. In response, a number of states have introduced legislation to prohibit mandatory vaccinations. In its May update, the EEOC notes that such a requirement might lead to allegations of its disparate impact on certain groups, but confirms that mandates are permissible, with exceptions. The EEOC states, “Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” Beyond the serious considerations of equity, such mandates may also violate the ADA unless employers engage in the “direct threat” analysis (see discussion below).

Encouraging and Incentivizing Vaccination

In its May update, the EEOC reminds employers that they may encourage vaccinations without violating the ADA (or GINA, which prohibits discrimination on the basis of genetic information in the workplace).

To encourage vaccinations, the EEOC offers the following best practices:

• Providing employees and their family members with educational information, raising awareness about the benefits of vaccination;
• Gathering and disseminating information on low-cost and no-cost transportation options to and from vaccination sites;
• Offering time off for vaccination, and addressing common questions and concerns.

The guidance also provides links to educational websites, as well as the CDC’s toll-free telephone number that offers assistance in many languages: (800) 232-4636; TTY (888) 232-6348.

But the most significant development from the May 28 FAQs is that the EEOC, for the first time, states that employers may provide incentives for its employees to get vaccinated. The EEOC distinguishes between incentives for receiving a vaccine administered by a third party and incentives for receiving a vaccine administered by the employer (or its agent). Regarding the latter, the EEOC states, a “very large incentive” could make employees feel pressured to disclose private, protected medical information. What will constitute a “very large incentive” remains to be determined, with the EEOC only elaborating by stating, “any incentive (which includes both rewards and penalties) [must not be] so substantial as to be coercive.” This language would certainly seem to indicate that the extra day or two of paid time off that many employers have offered would be permitted.

In addition, if an employer allows the employee to voluntarily get a vaccination from a third party (such as a local pharmacy, personal physician or the county health department), the EEOC says there is no limit on the size of the incentive limitation the This is significant position because employers now have flexibility in providing what could be substantial new, or added incentives to employees who receive a vaccination from a third party. 

Issues Related to Vaccination Screening

The EEOC warns that a pre-vaccination medical screening is likely to elicit information about a disability. For example, current CDC vaccination protocol includes asking questions about prior vaccinations, as well as contraindications including allergies, prior reactions to vaccines and underlying immune system problems. Therefore, employers who administer a vaccine themselves (or via a contractor) would have to show that the questions are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to their own or others’ health or safety.

However, as to this issue the EEOC provided several safe havens. First, it stated that if the vaccination program was voluntary, then the disability-related screening questions would also be considered voluntary and would not violate the ADA. The EEOC also stated that when an employee receives an employer-required vaccination “from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider,” then the employer cannot be held liable for those same pre-vaccination questions. Therefore, employers who wish to mandate the vaccine should consider keeping the process of vaccination at arm’s length.

Storing Employee Vaccination Information

While employers may require employees to show proof of vaccination, such records of being vaccinated (or not being vaccinated) are considered medical records under the ADA; therefore, like any other medical records, vaccination information should be kept confidential and stored separately from the employee’s personnel file.

Accommodating Disabilities

Exposure to COVID-19 as a Direct Threat to Safety and the Accommodation Process

As the EEOC states, “if a particular employee cannot meet … a safety-related qualification standard [such as a COVID-19 vaccination] because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a direct threat to the health or safety of the employee or others in the workplace.” A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. The EEOC reminds employers that there must be an individualized assessment to make this determination. The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. In its May update, the EEOC adds this instruction:

The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment.  Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.  Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

This is a fact-intensive inquiry, and the EEOC’s guidance adds factors that make the analysis more complex. Therefore, when determining whether a direct threat is present, employers must not simply looked at fixed characteristics such as their industry, but rather, the fluid, dynamic environment around the employer. For example, if an employee cannot be vaccinated because of a disability, yet works with a population that is mostly vaccinated in a private office and must wear a mask when in common areas, there may not be a significant risk of substantial harm.

Accommodations

If you have concluded that unvaccinated employees present a direct threat, there remains the issue of a reasonable accommodation. As HR professionals know, the ADA requires employers to make reasonable accommodations so that qualified individuals with disabilities can perform the essential functions of their jobs. The EEOC’s May update states: “As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Such an accommodation could include, for example, modifying a workplace tardiness standard to allow an employee with a disability some flexibility in reporting time (absent an undue hardship). The same could be true with a mandatory vaccination policy. If an employee cannot be vaccinated due to disability (which could include pregnancy) or a sincerely held religious belief, the EEOC states that the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk. Remember that Title VII as amended by the Pregnancy Discrimination Act specifically requires that employers treat women affected by pregnancy, childbirth, and related medical conditions the same as those employees who are similar in their ability or inability to work.

The EEOC uses a host of factors to determine whether undue hardship exists, including the “type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.” Ask yourself: Would requiring the employee to wear a mask work? Could that employee work at home until the United States reaches herd immunity? Are there other accommodations that might be effective (such as social distancing, working in an office with a door, etc.)?

In its May update, the EEOC states that reasonable accommodations or modifications for the non-vaccinated who enter the workplace include a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework, or finally, accepting a reassignment.

Accommodating a Sincerely Held Religious Practice or Belief

Additionally, under Title VII, the employer may have to provide a reasonable accommodation where an employee’s sincerely held religious belief, practice or observance prevents the employee from taking the vaccine if doing so does not impose more than a de minimis cost – a lower burden than the ADA, but one that requires employers to consider and analyze the request.

The EEOC counsels that the definition of religion is broad and that employers faced with such a request should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” However, should an employer have an “objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance,” the employer may require the employee to provide additional, supporting information.

Other Considerations

Employees who are disciplined or terminated for not being vaccinated may have rights beyond the ADA, Title VII and GINA. OSHA’s position on mandating flu vaccines is that such requirements are permissible but employees who refuse vaccination because of a reasonable belief that they have a medical condition that creates a real danger of serious illness or death may have recourse under OSHA’s whistleblower laws. Additionally, under the National Labor Relations Act, unionized workforces may have the right to negotiate any mandated vaccine as a term or condition of employment. Furthermore, compensation issues – for the vaccination as well as time off to be vaccinated – may arise (similar to the issue of compensating employees for waiting for a health screen before starting a shift)

Employers should also be mindful of state and local laws, such as paid sick leave, that may trigger financial obligations. Potential liability issues could arise if an employee has an allergic reaction to or becomes sick due to vaccination. Finally, while the federal government has said the COVID-19 vaccine will be free in 2020 and 2021, regardless of insurance, employers may want to provide free vaccinations should they be required in future years.

Steps Employers Can Take Now

1. Decide whether to Mandate or Not

When deciding whether to mandate vaccination, take care to review the availability of the vaccine in your area.

2. Decide whether to Offer any Incentives

The latest guidance provides employers with great leeway to offer incentives, particularly if the employer does not provide the vaccine.

3. Draft a Vaccination Policy

Employers should draft a vaccination policy – whether mandatory or voluntary – so that employees clearly understand the company’s vaccination protocol and its safety-related purpose. The policy should include language that the employer will reasonably accommodate employees who request an exemption on the basis of a disability or sincerely held religious belief, practice or observance. Reporting and recording procedures should also be set forth. Consequences for failing to adhere to the vaccination policy should be explained. Finally, the company should revisit any existing vaccine policy to ensure consistency.

4. Anticipate Accommodations/ Train HR and Supervisors

Employers should anticipate accommodation requests and designate a person or department (such as HR) to whom accommodation requests should be referred. They should also train the managers and supervisors about the accommodation policy and process. The EEOC states that as a “best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.” The EEOC includes a link to guidance on recognizing such a request. Second, they must know to whom to refer the request for full consideration. Finally, the EEOC guidance reminds managers and supervisors that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

One issue certain to arise is whether working from home is a reasonable accommodation – particularly if the employee has done so over the past year. Indeed, the EEOC guidance states that remote work should be considered before termination.

If you would like more information or would like to discuss these issues further, please contact a member of Gould & Ratner’s Human Resources and Employment Practice or visit our Coronavirus/COVID-19 Resources page.

                     David Michael                        

As the leader of Gould & Ratner’s Human Resources and Employment Law Practice, David draws upon an extensive 26-year background in human resources management and counseling and limits his practice to management-side human resources, employment and labor law. He has handled and won cases involving all aspects of employment law, including race, national origin, age and disability discrimination, sexual harassment, restrictive covenants, workers’ compensation retaliation, trade secret misappropriation and breach of fiduciary duty.

Emily Wessel Farr

With years of experience as both a litigator and an employment attorney, Emily Wessel Farr advises employers on a wide-range of issues such as civil rights violations, harassment and discrimination, protection of trade secrets, NLRB matters, peer review and credentialing and HR training. Emily also regularly advises businesses on corporate matters including insurance coverage, breach of contract, unfair labor practices, civil rights and ADA violations, disciplinary actions and licensing issues. 

Judy Hissong, President of Nesso Strategies and a former law firm Chief Operating Officer, led a session allowing participants to share concerns, obstacles and observations they are currently experiencing.  She challenged us with understanding what it means to Lead into the Unknown.  We discussed our ideas of what employee engagement will look like as firms begin to occupy physical space again or remain hybrid.  She presented the concept of redefining the “office” initiative.  What is the purpose of office space?  Is it a fixed location where everyone works or is it an unconstrained concept of a firm without walls?  Is it a designated window where everyone works at the same time or unconstrained continuum where employees work any schedule to fit their lifestyle? 

Participants were asked to think about what it is that makes their office the place people want to work.  She encouraged us to define what fosters resilience and a new long-term culture.  Many firms are facing challenges of creating employee trust or trust between employees and management. Can leadership trust that employees are being productive from home? And what tools can you use to monitor that?  Many voiced concerns about employee mental health as the return to the office might give rise to the discomfort of seeing a space that is half-filled or a space that doesn’t involve all the same people anymore. How do you re-introduce everyone to each other while considering the varied individual circumstances?

While the discussion showed a wide variety of approaches firms are taking, it revealed that we are all facing the same questions and challenges.  It us up to us as leaders—working with other firm leaders—to determine the next steps.  The steps taken will convey what is truly important to the culture of the office.  Whether we plan to offer flexible schedules, implement automated work processes, and/or work to recreate an atmosphere of collaboration, every firm must determine how they are going to lead into the unknown.

If you missed the session, be sure to check out the recording in our session library.  The next bi-monthly is planned for July 21st with Joshua Evans, Purpose or Perish: The Future of Post-Covid Employee Experience.

Welcome Back – or Soon-to-be Back!

If you have not yet re-opened your law firm or legal department, the day will be here before you know it.  The distribution of vaccines and the continuing decline in cases is a welcome development for us all, but one that comes hand-in-hand with anxiety.  Reopening a law firm on the tail of a pandemic is uncharted territory, and it's a pretty good bet that we will not be returning to business as usual – at least that's what many of us are hoping.  There are a host of issues that must be considered, and Administrators and other law firm leaders are hard at work creating re-opening plans, assembling teams, writing new work place rules, reassessing technology, analyzing proposed flexible work schedules, and preparing employee communications.  And this is just the beginning. 

As I look back over a year now, searching for hand sanitizer and face coverings was the easy part.  Addressing the anxiety of bringing everyone back safely while riding the wave of change is something that none of us can do alone, or at least do well.  The ALA Chicago community, and the resources available nationally, will be invaluable as we take these next steps, as will our Business Partner relationships.  I encourage you to take every opportunity to reach out to your fellow members and Business Partners, particularly over the next several months.  "We're Here for You", the tagline on our logo, says it all.

With best regards,

Mary Ann Rojas

Chapter President

And that’s saying something.

Like everything else in the last 15 months, we didn’t ask for these problems. But as leaders we’re charged with the unenviable tasks of moving our firms forward. That’s why we’ve decided to call this issue The Reopening Issue. How do we engage with our remote workers? For those that return, can we mandate vaccinations? Do we check for proof? How safe is Metra right now, really? And now that the genie is out of the proverbial bottle, how can we accommodate the demands for flexible work schedules? 

This time of great change will also touch our newsletter. In the coming months, you’ll see a slimmer, more concise version of Administrator’s Advantage. We’ll also dedicate future issues to timely material from all ranges of topics, no longer restricting ourselves to specific themes.

Finally, be sure to check out Legal Levity for a list of summer events in the city. As life reopens, we’ll all be dealing with various levels of comfort with the return of in-person events. But there is life. So, whatever you do, be sure to have some fun. After the year you just had, you deserve it.

-Phil

I work for:  Blue Sky Marketing Group

My title is:  VP Business Development

The company's product or service is:  We are specialists  in connecting through the power of custom branded promotional items and other gift giving services. Blue Sky helps brands reach new customers, helps companies reward and engage with their employees, and makes gift giving easy through innovative and creative solutions.

The company has/is: Blue Sky is family owned and operated, and is celebrating 24 years of successful partnerships with thousands of companies across the globe.  Blue Sky is headquartered in Chicago, IL, with offices in San Diego, CA and Tucson, AZ. 

Before becoming a business partner to the legal market, I was: Law firms have been terrific clients since the inception of Blue Sky Marketing, and continue to be.  Some of our most loyal clients are firms we’ve worked with for over 20 years!

I entered the legal market because: Service is our best specialty.  Being responsive, accountable and applying critical thinking aligns perfectly with the fast-paced legal market. 

I have a degree in: Hospitality Management.

I support ALA because: Being a family run business, we really care about our clients.  Our goal is to make their job easier.  Our level of professionalism, service and creative thinking is a perfect complement to the administrative staff we work with.

To be successful in the legal market, one has to:  Be responsive, clear, and transparent with the project at hand. Our project presentations are extremely thorough and laser focused on exceeding expectations.

The thing I like best about being a business partner to the legal market is: Transparency. Say what you mean and mean what you say!

 The best advice I have received is:  Control the situation, don’t let the situation control you.

The best advice I would give to someone just entering the legal market is: If it doesn’t challenge you, it won’t change you.

I try to motivate myself and/or my staff by: Setting high expectations, being accountable for my actions and leading by example. I establish “wants and needs” and map out a course to achieve them, one day at a time -- or, I just put in “Rocky”! 

Three things I do well are:  Being a dad, a husband and a son.

While I love my current job, my dream job would be: In 1993, I visited St. Thomas. Ever since then, I have wanted to run a charming bed and breakfast on the island, renting out wave runners and selling coconuts.

The last good book I read was: A Gentleman in Moscow.

The last good movie I saw was: Outlander (series on Starz).

The last vacation I took was: Rosemary Beach, Florida.

In my free time, I:  Nothing gives me more satisfaction than going on adventures with my wife and three children. Whether a road trip or a bike ride, being with them satisfies my soul. 

Before becoming a legal administrator: I worked at the US Attorney’s Office for many years.

I have been working in the legal field for14 years! have a degree in Law Enforcement/Communications from Western Illinois University

I joined the ALA Chicago Chapter because I wanted to connect with and learn from other administrators.

To be successful in legal administration: one must be willing to listen, open to change, and be fair yet firm.

The thing I like best about being a legal administrator is: no two days are the same. 

One of the challenges of being in legal administration is: see the above answer!

The best advice I've ever received is: Don’t be too hard on yourself and don’t let imposter syndrome in.  You will have good days and bad.  Don’t let the bad days control you.

The best advice I would give to someone who is just entering the legal management field is: Reach out to others in the field. Make connections.  This job can be lonely and it’s really helpful to connect with others who can relate to what we do.

I try to motivate my staff by: Listening to their ideas and implementing what I can.

If I weren't a legal administrator, I would: Probably be an event planner. I love planning just about anything!

The last good movie I saw was:  I haven’t watched a lot of movies lately. I finally started watching ‘Breaking Bad’ on Netflix (I know, I’m behind) and it’s great!

My last vacation destination was: Galveston, Texas in 2019.  We are headed to Gulf Shores, Alabama in July. We like beaches!

In my free time, I enjoy: Hanging out with family, however fleeting that is with 20 and 19 year old daughters. I love shopping and having a drink or two in the summer sun. I love that our summer in Chicago is looking so optimistic.

As many employers approach their one-year anniversary of working from home, it is obvious that the COVID-19 pandemic has permanently changed both how and where we work. By 2025, an estimated 36.2 million Americans will be working remotely—a staggering 87% increase from pre-pandemic levels.  Moreover, surveys reveal that company leaders plan to permit employees to work from home at least part of the time upon reopening their offices. However, a remote workforce poses a challenge for employers that must display certain notices and posters in their workplaces to advise employees of their rights under federal, state, and local employment laws.

In response to this widespread shift to remote work, on December 29, 2020, the U.S. Department of Labor issued Field Assistance Bulletin No. 2020-7 (the “DOL Guidance”), which clarifies how employers may comply with federal notice and posting requirements in a remote environment.

Employers should keep three core issues in mind:

“Post and Keep Posted” vs. Individual Notices

The DOL Guidance distinguishes between notices that must be continually posted (“Postings”) from those that have to be provided once to each employee individually (“Notices”). For federal laws requiring employers to post Postings “at all times,” (e.g., the Fair Labor Standards Act and Family and Medical Leave Act), employers will not fulfill their notice obligations by simply issuing a one-time direct mailing or other single notice to employees. Rather, the DOL Guidance states that an electronic posting constitutes a sufficient substitute for a Posting requirement only where:

1.    ALL employees work exclusively from home;

2.    ALL employees customarily receive information from the employer electronically; and

3.    ALL employees have readily available access to the electronic posting at all times.

If an employer has some employees on-site and others working remotely on a full-time basis, the employer may supplement a hard-copy Posting with an electronic Posting. The DOL encourages both forms of Posting under such circumstances.

Conversely, for federal statutes or regulations requiring individual Notices, employers may satisfy the Notice requirement by email or other electronic delivery, so long as employees customarily receive such information from the employer by such method. This is consistent with existing DOL regulations, which allow electronic delivery of required Notices only where employees already regularly use such electronic communications.

Electronic Postings Must be as Effective as Hard-Copy Posting

With regard to federal worksite Posting requirements, the DOL Guidance offers a clear rule: an electronic Posting, whether by intranet site, shared network drive, or file system Posting, must be as effective as a hard-copy Posting. A number of federal laws require employers to display Postings where they can be readily seen by employees and applicants. Such rules remain in full effect with respect to electronic Postings.

As the DOL Guidance explains, employers must take reasonable steps to ensure employees are capable of accessing the electronic Posting without having to specifically request permission to view the Posting or access a computer. Posting a notice on a company website or intranet is not sufficient unless the employer already posts similar Postings in such a manner on a regular basis. As the DOL provides in the Guidance, posting on an unknown or little-known website is the equivalent of posting a hard-copy Posting in an inconspicuous location and fails to meet the federal requirements.

Finally, the DOL reminds employers to take reasonable steps to inform employees of where and how to access the required Postings to remain in compliance. Employees should be capable of easily determining which electronic Posting is applicable to them and their worksite.

Do Not Forget State and Local Notice and Posting Requirements

Although the DOL Guidance applies only to federal notice and posting requirements, employers should remember that many states and cities have additional notice and posting requirements with which they must also comply. For example, New York’s Department of Labor requires certain posters for minimum wage information, job safety and health protection, and the like. California requires employers to post information related to medical leave and pregnancy disability leave, minimum wage, and workplace discrimination and harassment. Should a state or local agency provide conflicting instructions regarding electronic notices and posting, employers should follow such guidance with regard to the state and local notices and posters.

Susan Gross Sholinsky is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims.Eric I. Emanuelson, Jr., is an Associate in the Employment, Labor & Workforce Management practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on disability laws, employment litigation, and employment training, practices, and procedures.

Cynthia Park* is an Associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She advises on employee benefits and assists in defending clients in labor and employment-related litigation, such as discrimination, harassment, and breach of contract disputes.

*Law Clerk – Admission Pending

As the COVID-19 global health event continues, employees across the country are still working at home and will likely keep doing so for the foreseeable future. If you have employees who live in a different state from where your business is located, this can create additional tax and payroll challenges.

Here's what you should know about managing payroll taxes for employees working out of state, with insights from ADP's recent webinar, Strategies for Surviving Year-End Reporting.

State income tax withholding

When it comes to tax withholding, payroll primarily follows the rules of the state where the work is performed. If employees who live out of state come to your business for work, payroll would follow the withholding rules for the state where your business is located. These employees may owe income tax to their state of residence. Employers often withhold partial amounts for the residence state in addition to the worked-in state, or in some cases the employees handle that themselves when they file their personal income tax returns.

There is an exception when two states have a reciprocity agreement wherein the governments agree that residents only owe income tax to the states where they live, not where they work. If this applies to your workers, you should already be withholding taxes for the state where your employees live. Without a reciprocity agreement, taxes may need to be withheld in both the state in which work is performed as well as the residence state. Check with your state Tax or Revenue Department for details.

Income tax rules for working out of state

If your employees work from home in a different state for number of days that exceeds the established threshold for that state, the employer must generally recognize the change and begin to submit taxes to the state where the employee is working, not where the business is located. This threshold varies by state — for instance, in New York it's 14 days, but in Illinois it's 30. Other states have an income threshold, or a combination of time and income.

Another factor some state governments consider is whether the employee is working from home for their convenience or as a necessity for their job. If it's for the employee's convenience, then tax withholding should be sourced for the state where the business is located. If working from home is a job necessity, then payroll is sourced through the employee's state of residence. But state laws and rules vary considerably on the specifics.

Before COVID-19, employers could avoid managing payroll taxes for employees working out of state by having everyone work on site. Now, safety precautions and stay-at-home orders may have forced your organization to account for a multi-state workforce, especially since the pandemic has pushed many employees beyond the temporary thresholds for working from home.

COVID-19 complications

If your business suddenly has employees performing significant out-of-state work due to COVID-19, you may need to register your business with these states to withhold taxes for these employees.

What complicates this matter is that state governments have taken different approaches to the crisis. Some have offered temporary guidance. Alabama and Georgia announced that they would not enforce their payroll withholding requirements for employees who are temporarily working from home in their states due to government-mandated stay-at-home orders.

As another example, Pennsylvania announced that if an employee is working from home temporarily due to COVID-19, the state will not consider that as a change to the sourcing of the employee's compensation. For non-residents who were working in Pennsylvania before the pandemic, their compensation would remain Pennsylvania sourced income for all tax purposes. For Pennsylvania residents who were working out-of-state before the pandemic, their compensation would remain sourced to the other state and they would still be able to claim a resident credit for tax paid to the other state on the compensation.

However, these rules may not apply depending on whether the states involved have a reciprocal tax agreement. Pennsylvania has reciprocal tax agreements with Indiana, Maryland, New Jersey, Ohio, Virginia and West Virginia.

In addition, some states like Connecticut have ruled that employees working from home due to COVID-19 is a necessity for work, while others, like New York, have ruled that it is for the employee's convenience. These conflicting rulings mean your business could be in a situation where you need to collect withholding on behalf of two states for an employee working from home.

Another related problem deals with tax "nexus", which is the concept that where a business has an established presence in a state, it may be required to pay sales, income and other business taxes for that state. In some states, having employees working in the state is enough to establish nexus, which could lead to further tax compliance requirements for your business.

Again, some states have issued guidance to address the effect of COVID-19 and people temporarily working from home. Pennsylvania, for example, will not seek to impose Corporate Income Tax or Sales Tax nexus solely on the basis of this temporary activity. However, this guidance is only in effect until the June 30, 2021, or 90 days after the emergency in Pennsylvania is lifted. In some cases, employers may need to assess whether remote workers are likely to return. If remote work locations are likely to persist, employers may need to consult with Legal and Tax advisors and register with any states in which a legal presence has been or will be established.

New legislation

Even with extra guidance, employers must navigate a wide range of possible laws and payroll requirements, especially if they have employees living in several states. To improve the situation, the federal government is considering legislation that would establish a uniform rule for employees working from home due to COVID-19.

The Mobile Workforce State Income Tax Simplification Act would standardize rules for tax withholding for cross-border employees. For instance, the act would set up a uniform threshold of 30 days of at-home work before withholding laws would apply. The HEROES Act and HEALS Act proposals both contain provisions for this issue as well, but Congress is still debating these bills.

Payroll compliance

Unless state laws are changed and/or the federal government standardizes the rules, employers need to understand and comply with their regional requirements around managing payroll taxes for employees working out of state. Organizations will also need to understand the possible nexus impact on their business. To accomplish these objectives, consider speaking with a legal and payroll expert who is on top of the latest state laws. They can help you update your payroll system to manage the new requirements as your employees continue working from home.

For more information on payroll taxes and other tax/legal issues for the 2020 tax year, launch this on-demand webinar, Strategies for Surviving Year-End Reporting.

This story originally published on SPARK, a blog designed for you and your people by ADP®.

David Rodeck is a professional freelance writer who specializes in business and financial writing. His past clients include Anthem BCBS, Equifax, Jackson National Life and Dixon Hughes Goodman. Before writing full-time, he worked as a financial advisor and passed the Series 6 and CFP exams.

Humans thrive in connection. We crave it. A simple touch – handshake, hug, or brush on your arm – is enough to release dopamine and serotonin, the ‘feel good’ chemicals in our bodies. For the past year, where our usual points of connection have been restricted, our craving for the feel good has been met by being right. Think about that for a moment – when we can persuade someone that we are right we release the same hormones as when we are connecting with another. Yet being right is often the opposite of connecting.

We have adapted to working from home, which has been great in some personal respects about time, and awful when thinking about work/home boundaries. The same is likely true for your attorneys, and your staff. When thinking about returning to shared professional space there is trepidation about more than the virus. Being socially isolated from your colleagues has given everyone opportunity to get rooted in being right, and to interact by choice (camera on or off?) instead of the casual polite interactions between desk and kitchen that existed in 2019.

Are you ready to return to the office? Maybe you’ve been going in regularly all along, but your team hasn’t been. Are you ready to have them back in the office? The complexity of bringing people back into shared space begins with mindset. Your mindset first. Then theirs.

Leadership begins with self-awareness. What have you noticed about your relationship to ‘returning everyone to the office’? Do you think of it as an initiative? What if it was the first initiative you oversaw in 2021? How would you build your plan? Now flip that thinking – what if you think about returning everyone as complex and overwhelming? How would you build it now?

See the difference? And that’s less than 2 minutes of thinking time! Our mindset influences our mood, our communication, and our relationships.

You may have heard or read about fixed vs. growth mindset. Self-evaluation first – do you believe that you are a certain kind of person and there’s not much you can do to change that? Now for other-evaluation – do you believe that someone on your staff isn’t going to change? These are indicators of a fixed mindset about intelligence and personality. The good news is that you can decide differently at any moment, and I suspect you have. Think of someone who has “turned it around” or who has surprised you with a change in behavior. Your recognition of their change is indicative of growth mindset.

Back to self-evaluation – what is the last new skill you practiced at work? And why did you learn it? When we are pushed into learning a new skill (video conferencing in April 2020 comes to mind) our mindset matters. We all pitched in to move our firms out of shared space for the safety of everyone, remember? That opportunity to overcome challenge demonstrated a growth mindset. And I bet you know the person who never stopped going to the office, or who still can’t figure out how to unmute on a video call. Fixed mindset.

How does this matter when we are considering bringing the office back together? You have people who are looking forward to seeing their peers and colleagues as soon as possible, needing the social connection that happens at work. You have others who are reticent to share physical space after so long on their own. These all come together in a time when our social skills have developed rust.

Go back to that interaction that happens when I am pouring a cup of coffee in the kitchen and you are getting a glass of water. It is pleasant, at least, and collaborative at best, because we work in the same firm, with the same challenges and pace. You cannot get that in your kitchen at home, where it is likely two organizations with different cultures when you bump into your cohabitator.

The rust on our social skills means we will need a soft re-entry. I suspect you are already thinking about staging return in waves, pockets, or some way that support small groups at a time. Also think about how you can create intentional sharing with these small groups to help with reinvigorating of skills. We all have a gap year of life, although we lived it, we didn’t share it.

This is where mindset matters again. Framing your initiative as though you have your entire firm as new employees for a second – what would you do to have them know each other? If you start there, your curiosity dominates your approach and creativity flourishes. If you start with critical thinking, which is our dominant pattern, especially in the legal industry, then you are likely to use a lens of judgment, being highly critical of how people return, when they return, and whether they are vaccinated or not. This judgment is going to root you in a fixed mindset and restrict the opportunities (and resulting success) of your initiative.

Another significant point about mindset is relative to mistakes. Given that you had no experience in managing a firm during a global pandemic, what have you learned? What mistakes did you (and/or the firm) make in the past year? And how did you respond to them? A fixed mindset is “I hate that I made the mistake, and I do almost anything to avoid them” where a growth mindset says “wow, look at what we learned, and how we can apply that to make it better in the future.”

These are important as you work with folks in the plan to return. Explore their mindset around these same issues – how do they feel about shared space, being in the office, vaccine, etc. What mistakes have they made in the past year, and what mistakes did they see the firm make? In addition to collecting feedback, you are showing a growth mindset in learning and applying information. This is also a good way to invite them to a growth mindset about returning to shared space.

You may have noticed that this article has been about returning to shared space, not returning to work. For most employees there has been more work done in the past 13 months than beforehand. The boundaries blurred and people checked in to be sure things were done at all hours of day and night. Language matters, now more than ever. Your initiative is a return to office or return to shared space. And I chose shared space because the sharing is what builds our culture and makes each of our firms unique.One last time in self-evaluation. What are you thinking about now as it pertains to this initiative? When you catch yourself in a fixed mindset, get curious. Remember everyone can shift from a fixed mindset to a growth mindset at any point. As leaders who are aware of your mindset, you can bring folks along with your curiosity. Curiosity and judgment cannot be held in your brain simultaneously. Which one do you want active?

Judy Hissong is the President of Nesso Strategies. A former law firm Chief Operating Officer, she helps firms become more profitable by advising leaders in strategic and leadership development challenges.  Her mission is “world domination for Good.”  By creating actionable, lightbulb moments that leaders want to share and spread, she intends to improve the world one person at a time.  When she’s not speaking, training and consulting, Judy teaches quarterly online workshops and facilitates Leaders Lab, a free monthly video conference that enables small groups of leaders to brainstorm strategies and solutions to work through common issues that keep firms stuck.

One year ago this month, the World Health Organization declared the COVID-19 virus a pandemic. After a long and difficult year of unfathomable loss and unprecedented upheaval of lives and livelihoods, the arrival of effective vaccines now offers palpable hope that there is light at the end of the proverbial tunnel, and it's not another train carrying new pandemic woes.

For employers, the big question is what happens now.

Preparing for the Next Normal

Many business leaders and scholars believe that the impact of the pandemic has been so broad and deep that, realistically, there's no going back to the old, prepandemic normal.

Since it is too early to discern an enduring new normal, employers should begin planning for and implementing what has been more aptly termed the "next normal."

As employers consider how to respond to yet another unprecedented challenge, let's remember how, for more than a year now, they have been compelled on an almost daily basis to tackle novel and often profound operational hurdles for which there was no playbook.

Arguably, the employers that most successfully survived 2020 demonstrated unusual flexibility in managing the myriad stresses the pandemic placed on both their operations and the employer-employee relationship, from challenges to traditional notions of work — and even the workplace — to a disrupted, anxious workforce, much of which was burdened with juggling competing family needs.

The transition to the next normal will have its challenges as well — we're already seeing some of them, such as the issues around vaccination — and it will surely require continued flexibility.

It also presents opportunities to create a more agile, committed and productive workforce and a stronger, more compassionate company culture.

The following discussion explores key opportunities for making the move to the next normal a transformative transition and provides guidance on some of the legal and operational considerations implicated in the process.

Facilitating Remote Work Options

 While it may not play the essential role it held in 2020, according to a recent report on the future workforce from Upwork Global Inc., remote work will continue through 2021 with more than one in four employees working fully remote. Significantly, most of the 1,000 hiring managers surveyed for this analysis expect to use a hybrid remote work model after COVID-19.

Notably, the Upwork survey also revealed that many employers that had previously opposed remote work were impressed by how well it has worked. To this point, the top three benefits the hiring managers surveyed cited in favor of remote work were (1) increased productivity, (2) greater schedule flexibility, and (3) a reduction in nonessential meetings.

Findings such as these suggest that the adoption of some form of a remote work program will play an increasingly integral role in how companies nationwide and across various sectors manage their operations.

During the pandemic, employers had virtually no choice but to adopt a remote work system. In considering the next normal, employers will have more flexibility in crafting such programs.

Using their pandemic experience as a guide, employers should first determine whether, going forward, remote work — full-time or hybrid — is practical operationally, and whether it is desirable and workable in building and maintaining company culture.

If these questions are answered affirmatively, an employer should then get granular and determine for each specific job whether and to what extent it can be performed successfully off-site, either fully or partially.

Finally, employers may wish to ascertain employee interest in working remotely going forward, to determine what type of arrangement best meets the needs of both the business and its workers.

Once a remote work plan is developed, the employer should train managers and human resources on how to manage full-time or hybrid remote workers during the next normal phase. The plan also should address such other matters as how the company will:

• Conduct employee mentoring and various kinds of training, including anti-harassment;
• Receive and investigate complaints of misconduct involving off-site workers;
• Ensure managers and HR understand and comply with the company's legal obligations to provide eligible employees — including remote workers — reasonable accommodations;
• Protect confidential data and train, or retrain, remote workers on the company's security policies;
• Acclimate new hires into the office culture;
• Redesign the facility to better suit the needs of a hybrid workforce and to ensure a safe and healthy work environment, consistent with current law and guidance;
• Adequately and lawfully address issues such as expense reimbursement, confidentiality, and employee safety and health;and
• Avoid the out-of-sight-out-of-mind syndrome when assessing employee performance.

Relatedly, it should not go unnoticed that the past year has led to a rethinking of the way employee performance is measured.

For example, some employers have begun to focus less on certain productivity metrics and more on the quality of an employee's work.

A move away from primary reliance on productivity also is beneficial in another respect — it minimizes the legal risks, and potential public relations headaches, inherent in various methods used for measuring productivity that may improperly implicate employees' privacy interests, such as tracking keystrokes and online activity.

To this point, a bill currently pending in the New York Legislature would, among other things, prohibit employers from requiring remote employees to install monitoring software on their personal electronic devices and limit monitoring of an employee's website browsing history on an employer-provided electronic device.

In addition, employers are advised that when addressing pay equity in connection with compensation decisions such as pay raises and bonuses, those decisions are nondiscriminatory, both on their face and as applied, and are consistently enforced.

Helping Women to Return to the Office

The numbers don't lie: The pandemic caused an exodus of women from the workforce and it's a business necessity that employers address it. It's also an important opportunity to create smart transformational change in company culture and policies.

According to the U.S. Bureau of Labor Statistics, over 2.3 million women dropped out of the labor force between February 2020 and February 2021, resulting in the loss of "a generation of labor force participation gains." Reasons for this exodus include:

• Before the pandemic, women workers dominated many low-paying industries particularly hard hit by the crisis, such as hospitality and retail, and those jobs — millions of them — will be among the last to come back.
• The closure of schools and day care centers compelled many women to leave the workforce to care for their kids.
• Even women who were able to work remotely lacked the support structure they needed to function effectively as both full-time workers and full-time caregivers.

More broadly, U.S. workers — mostly women, but, increasingly, men as well — also are caregivers to other adults, e.g., spouses, parents and other family members.

In truth, the pandemic exacerbated and illuminated an existing problem, namely, the lack of support systems that enable employees, and particularly women, to balance caregiving obligations and work responsibilities.

For example, caregivers tied to a rigid work schedule more frequently come in late, leave early and spend time at work on the phone handling caregiving issues. They are more likely to turn down new projects or promotional opportunities because of time concerns, and are more prone to feel stressed, depressed and isolated from colleagues, which, in turn, often takes a toll on their physical health.

It's no surprise, then, that without sufficient support, some caregiving employees drop out of the workforce altogether, causing employers to bear the expense of hiring and training their replacements. Conversely, effective caregiver policies can increase productivity and employee loyalty, and attract a larger and more diverse applicant pool.

The pandemic made the lack of support for caregivers a problem employers could no longer ignore, as many employers experienced the employee/caregiver crisis up close, especially with the closure of schools and care centers.

Though post-pandemic needs will differ, employers have a tremendous opportunity heading into the next normal to implement or expand caregiver-friendly policies for their employees and, in the process, cultivate or enhance a culture of compassion. Accordingly, they should consider adopting an array of benefits that will make life easier for working caregivers, such as:

• Paid leave that can be used for various caregiving purposes and can be taken incrementally;
• A child care or family care stipend, perhaps in place of another benefit;
• Subsidized backup home care; and
• Flexible work schedules, job-sharing and, yes, remote work arrangements.An employer also will need to create an effective communications program and train managers on the new benefits — new policies won't make much of a difference if employees aren't aware of them.

Building an Emotionally Healthy Workforce

Going forward, employers will likely be dealing with a significant mental health crisis, as the pandemic has taken a heavy toll on Americans' mental well-being.

Similar to the caregiver issue, the problem existed prepandemic, but the pandemic has substantially exacerbated it. Also like the caregiver matter, this most unfortunate situation presents a meaningful opportunity in the next normal to bring transformational change to the company's culture and make a difference in employees' lives.

The first step in this process is to get a handle on the magnitude of the problem.

Consider:

• One in three Americans has lost someone to the virus, The New York Times recently reported.
• Tens of thousands of Americans have lingering illness after contracting COVID-19, and the medical community does not know if or when those suffering from long COVID-19 will recover.
• In an October 2020 Kaiser Family Foundation survey, "more than half of adults in the United States reported that their mental health had been negatively impacted due to worry and stress over the coronavirus." This has led the foundation to conclude that "mental illnesses may soon be the most common pre-existing conditions."
• Researchers have suggested that the pandemic has also aggravated the feeling of burnout among workers, with millennials having the highest levels of burnout, mostly due to feelings of loneliness.

As they develop their plans, employers need to consider novel ways to address the potential impact of the mental health crisis on their companies. Traditional methods of helping employees with mental health issues, such as employee assistance plans, are necessary but likely not a sufficient solution.

Employers may consider adopting policies targeted at easing employee stress and anxiety, such as flexible scheduling, paid mental health days, job-sharing and encouraging employees to use vacation time. Employers can also consider training managers in identifying employees who may need help.

As for employees suffering from loneliness and burnout, a hybrid scenario may be more effective than working fully remote. Employers should ensure that when hybrid workers are onsite, they have ample time to socialize with their colleagues. Employers may also want to consider adopting blackout periods, when workers shut down their computers and work phones at certain times, or days when videoconferences cannot occur.

Finally, employers should understand that they are legally required to treat employee requests for reasonable accommodation of mental illness in the same manner as requests for accommodation of physical disabilities.

Employers need to be aware of their obligations in this regard under state and local laws, as well as federal law, since the former may impose greater accommodation obligations than the latter.

Conclusion

2020 was an awful year, but it also motivated flexible and creative, out-of-the-box solutions to multiple workplace issues.

Employers should maintain this attitude and seize opportunities to implement meaningful changes for both the company and its employees as they steer their way through the largely uncharted waters of the next normal.

David W. Garland is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York and Newark offices of Epstein Becker Green. He is also Chair of the firm’s National Employment, Labor & Workforce Management Steering Committee and a member of the firm’s Board of Directors. Mr. Garland is frequently retained in matters involving high-profile, high-stakes, and highly sensitive cases.

Susan Gross Sholinsky is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims.

Earlier this month, President Biden signed into law the American Rescue Plan Act of 2021 (ARPA). ARPA extends by another six months, the reimbursement of paid leave offered by the Families First Coronavirus Response Act (FFCRA) that was scheduled to expire on March 31, 2021.In addition, along with extending unemployment benefits under the CARES Act, ARPA provides a new benefit by providing reimbursement of 100% of COBRA continuing healthcare premiums for eligible individuals, from April 1 through September 30, 2021.  

FFCRA Reimbursement Extension 

ARPA has extended the reimbursement of applicable wages paid under the FFCRA. While employers are no longer required to offer FFCRA, those who do between now and September 30, 2021 will be reimbursed by the federal government in the form of a credit against applicable employment taxes in a calendar quarter. Employers who decide to provide FFCRA must do so for all employees who qualify under the law.  As we wrote about last year, the government will reimburse up to 80 hours of qualifying paid sick leave for full-time employees, subject to caps of $511/day and $5,110 in total. Part-time employees are subject to the same monetary caps, with their maximum hours based on the equivalent of their average hours worked in a two-week period. ARPA did not change these limits, though it resets them on April 1, 2021.Therefore, an employer will be eligible for the employment tax credit when an employee takes qualified paid sick leave even if that same employee took leave prior to April 1, 2021.

Additionally, ARPA expands reimbursement for qualifying paid family leave from 10 weeks of leave to 12 weeks. (FFCRA originally provided 10 weeks and a two-week, unpaid period). The cap on paid family leave remains at $200/day, resulting in a new cap of $12,000 total.

Additional Qualifying Leave

• ARPA expands the qualifying reasons an employee may take both types of FFCRA leave. An employee will be eligible for paid sick leave if:
• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 (as we wrote about last year, this is not as far-reaching as it sounds);
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• (NEW) The employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of COVID–19, and such employee has been exposed to COVID–19 or the employee’s employer has requested such test or diagnosis; or
• (NEW) The employee is obtaining immunization related to COVID–19, or recovering from any injury, disability, illness, or condition related to such immunization.

ARPA also expands the qualifying reasons an employee may take emergency family leave, which was previously limited to childcare-related reasons:

• The employee is unable to work (or telework) due to a need for leave to care for a child under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to a public health emergency;
• (NEW) The employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID–19, and such employee has been exposed to COVID–19 or the employee’s employer has requested such test or diagnosis; or
• (NEW) The employee is obtaining immunization related to COVID–19, or recovering from any injury, disability, illness, or condition related to such immunization.

As employers continue to navigate the challenges presented by the COVID-19 pandemic, they should consider taking advantage of FFCRA. For employees who qualify, paid leave is one way to improve morale. When employees are exposed, paid leave may help them make the right choice to stay home, rather than risk spreading the virus. Additionally, as vaccines become available to more Americans, FFCRA offers an easy way for employers to encourage employees to take the vaccine without having to design an internal protocol around uncertain wellness program regulations. In sum, FFCRA is an incentive without an incentive program.

Employers interested in providing FFCRA should:

• Decide whether to offer FFCRA without regard to who (among eligible employees) requests it. ARPA prohibits employers from receiving the tax credit if they are found to discriminate in favor of full-time employees, “highly compensated” employees (defined by IRS guidelines), or employees on the basis of employment tenure.
• Update policies and procedures to reflect the change in qualifying reasons and duration.

COBRA Premium Coverage Reimbursement

In order to address anxiety over healthcare coverage in the event of job loss during the pandemic, ARPA will cover 100% of COBRA premiums for eligible individuals (including spouse and dependent children) from April 1, 2021 through September 30, 2021—treating such individuals “as having paid in full the amount of such premiums.” As with other aspects of FFCRA, employers will be reimbursed for paid premiums through tax credits. While eligibility will follow the usual COBRA requirements—involuntary termination or the requisite reduction of hours by a covered employer—of particular significance is that even individuals who declined or dropped COBRA coverage prior to April 1 will still be able to receive the benefit. So long as any part of the 18-month COBRA period falls within the covered timeframe, premium coverage will be available. That means that coverage could end prior to or extend past the September 30 cut-off—either way, premiums are only covered from April 1, 2021 through September 30, 2021.  As with regular COBRA, coverage will end if the individual becomes eligible for another healthcare plan. Notice must be provided to eligible individuals as to the availability of the premium assistance, along with other required information, including a description of the extended election period. Model notices will be issued by April 10, 2021. Additional guidance will be forthcoming to address the many questions that will arise as this benefit is implemented.

Unemployment Extension

ARPA also extends the $300 weekly supplement for all individuals receiving unemployment benefit payments from 50 weeks to 79 weeks, beginning on March 14, 2021 through September 6, 2021.  Benefits remain available for individuals who would not otherwise qualify, like business owners and independent contractors.

Mark Brookstein, Partner. Focusing on commercial litigation and employment law, Mark Brookstein enjoys a diverse practice across a broad spectrum of industries. In addition to litigating matters involving contracts, real estate, business torts and other commercial disputes, Mark regularly advises employers on matters such as regulatory compliance, employee issues and protection of proprietary information.

Emily Wessel Farr, Partner. With years of experience as both a litigator and an employment attorney, Emily Wessel Farr advises employers on a wide-range of issues such as civil rights violations, harassment and discrimination, protection of trade secrets, NLRB matters, peer review and credentialing and HR training. Emily also regularly advises businesses on corporate matters including insurance coverage, breach of contract, unfair labor practices, civil rights and ADA violations, disciplinary actions and licensing issues. 

Our Annual Charity Event is one of two major events that the Chapter, our members and Business Partners, have supported local charities, raising thousands of dollars.  This year, all proceeds benefited Greater Chicago Food Depository which directly feeds some of the neediest neighborhoods in Chicago. We began our campaign with GCFD during our Chapter’s Holiday Virtual Event. The Casino Event raised $10,000 dollars.  Since December, we have raised over $15,500 GCFD!

Thank you to everyone who made this event a great success! And, a special thanks to our Business Partners and member law firms who sponsored Casino Night.  Without your support, we would not have had such a successful event.

If you still want to donate to GCFD, click on the above link which will take you to the Greater Chicago Food Depository-ALA Chicago page.

Thank you to our MEMBERS.  Over the past year, you have attended chapter events at an unprecedented rate.  More than 4 out of every 5 members attended at least 1 chapter event this year.  Thank you for being there for us, and for each other, which after all, is the thing that makes ALA so special and unique.

Thank you to our BUSINESS PARTNERS.  Our chapter could not do what we do without our incredible and loyal BP’s.  In a year like 2020, with no in-person events, our BP’s stuck with the chapter.  We ended the year with more BPs than we had at the beginning, if you can believe it. 

Thank you for your unwavering support and friendship.

Thank you to our FIRMS.  For me, the amazing Partners and Management Committee at Gould & Ratner.  Thank you for recognizing the value and contribution that ALA & ALA Chicago makes to our industry, community and members.

Finally, thank you to our BOARD OF DIRECTORS and CHAPTER MANAGEMENT TEAM.  As I was making recruiting pitches for this year’s Board, someone commented that I was assembling a dream team.  What an observation – and so true.  This team rebuilt a chapter calendar from scratch on the fly.  They never gave up - and look at the year we’ve had.  I am so inspired by this group of volunteers.  Thanks to each of you.  Finally, so much of our success as a chapter this year is due to our extraordinary chapter management team from Glatz Management Services, led by Chris Glatz.  We were very fortunate to have Amanda Mehrbrodt and Deb Hypke join us this year.  Their first official day was March 1st, 2020 – what a time to start, right?  Amanda has been our indispensable right hand throughout the year, with Deb pitching in and never missing a beat.  Thank you to the Glatz team.

Now I pass the gavel to Mary Ann Rojas, who becomes Chapter President on April 1st.  Mary Ann is a truly amazing colleague and friend.  The chapter could not be in better hands, and I feel great comfort in leaving things in Mary Ann’s care and I can’t wait to see what she, and the next Dream Team, accomplish in the coming year. 

I so look forward to seeing you all in person in the not too distant future...

Ken Koehn

ALA Chicago President 2020-21

As I pass on the reins to Phil, I would like to thank the members of my newsletter team, current and past, who have worked tirelessly to bring you valuable, relevant information and resources. Our current team members are Jane Klenck, Phil Crivellone and Laura Sears.  A big thanks to those who have also contributed on the frontlines and behind the scenes these past two years, Maria Frias-Lopez, Kat Denk, Michelle Howe and Mary Lynn Wilson. I am so appreciative for their talent, support and efforts.

This is our Legal Industry issue, encompassing a variety of topics in the legal space. We have compiled some valuable information and resources that touch on topics that may not necessarily be at the forefront. Because of the unexpected and unparalleled events this past year, law firms find themselves in the “what next?” predicament, facing even more unprecedented challenges on what our law firms will, or should, look like post pandemic as we continue to determine if remote work will be a feasible permanent solution. A couple of the topics are: How do you manage your payroll taxes for those temporarily working remote out of state? And how do you comply with postings and notices during work from home?

In addition, we have another fantastic video discussion from our chapter’s D&I team that you will not want to miss. Also, of course, our Legal Levity section never disappoints.  In honor of all Mothers, some of our members share their most memorable Mother’s Day celebrations.  To cheer you on at your Mother’s Day celebration, we include some delectable cocktail recipes from our very own, unofficial ALA Chicago Mixologist, Greg Buttera.

I hope you enjoy this issue and I wish all of you Moms a joyful Mother’s Day, and a wonderful summer to all! I look forward to seeing you in person very soon!

Happy Reading!

Betsy

I work for: isolved HCM

My title is: Director of Sales and National ALA Director

The company's product or service is: Payroll Management and way more.

The company has/is: Amazing software and great customer service.

Before becoming a business partner to the legal market, I was: Selling shoes and managing restaurants.

I entered the legal market because: I love being able to solve the needs of a challenging industry.

I have a degree in: Business Management and School of Hard knocks.

I support ALA because: I believe in the core values of the organization, I love the resources and tools available to members for career development, business management and comradery of the members.

To be successful in the legal market, one has to: Be compassionate, understanding and honest.

The thing I like best about being a business partner to the legal market is: Meeting new people and building amazing lifelong friendships.

The best advice I have received is: You are only as good as your word and trust is earned not given.

The best advice I would give to someone just entering the legal market is:  Be patient, building relationships takes time.

I try to motivate myself and/or my staff by: Having fun on a daily basis.

Three things I do well are: Party, talk sports, and raise amazing kids (not necessarily in this order.)

While I love my current job, my dream job would be: Own a restaurant / bar on the beach.

The last good book I read was: The Go Giver.

The last good movie I saw was: Justice League (The Real Version.)

I work for: McGuireWoods LLP

The firm & practice is: A full-service firm providing legal and public affairs solutions to corporate, individual and nonprofit clients for more than 200 years. 

My title is: Practice Assistant Manager

Before becoming a Practice Assistant (PA) Manager, I was a PA Supervisor and before that a PA (formerly titled Legal Secretary.)

I have been working in the legal field for: 36 years

I went to Triton College to obtain my associate’s degree in Legal Secretary – however I was offered a full-time position downtown at a large law firm one semester short of completion. 

I joined the ALA Chicago Chapter because: My former manager belonged to the organization and included me in the supervisor roundtables, which were incredibly informative and added tremendous value to my role.  It also provided an excellent opportunity to create friendships and network with my peers in the industry.

To be successful in legal administration:

1)  Promote and demonstrate a culture of honesty, teamwork, and trust.

2)  Be forward thinking, excited about change and embrace technology.

3)  Place a strong emphasis on service, to our attorneys and clients.

The thing I like best about being a Practice Assistant Manager:  It gives me the opportunity to be the manager I always wanted to have.  It allows me to promote a team atmosphere, provide support, identify/utilize each PA’s strengths, and coordinate relevant training opportunities to put my team in a position to succeed/excel, for our clients and attorneys.

One of the challenges of being in legal administration: The misconception that because the new generation of attorneys understand technology, they do not need the assistance of an experienced assistant.

The best advice I've ever received is:  If you do the right thing every day, good things will happen to you. 

The best advice I would give to someone who is just entering the legal management field:  Be honest, fair and consistent. 

I try to motivate my staff by: Celebrating their successes, giving them the tools needed to succeed, putting them in a position to share their talents, and always demonstrating we are a team - stronger together.

If I weren't a Practice Assistant Manager, I would be: An Innovator at Google or have a YouTube Channel giving funny advice and sharing “hindsight” knowledge to new parents.

The last good book I read was:  Little Fires Everywhere.

The last good show/movie I saw was:  Netflix - When They See Us.

My last vacation destination was: Italy, two weeks with my son’s college hockey team and all of their parents.

In my free time, I enjoy: Reading, cooking big Italian meals for my family and traveling (pre-covid.)

In the Season 2 finale of Mad Men, Don Draper returns to his 1960s Madison Avenue advertising firm from a three-week disappearance in California. He finds a world in turmoil: His marriage—through his own character flaws—is on the rocks; his company is on the verge of a very pivotal merger; and the nation is in panic as the Cuban Missile Crisis threatens worldwide obliteration.

Many of us could relate to this setting. A deep and profound lack of certainty this past year has pervaded every aspect of our lives. A global health crisis has (at least) ruined our plans or (at worst) taken someone we love. The fallout from social distancing restrictions has forced families to isolate and get used to each other in cartoonishly unpredictable ways. The nation’s vaccination program has proceeded much slower than needed. And now political turmoil boiled over in the form of an attack on the Capitol Building, leaving us disoriented, dismayed, and anxious of the future.

As Draper sits in a conference room with the potential new owners brought in for a deal arranged while he was AWOL, he’s confronted with a multitude of uncertainties. Moreover, a rival of his, Duck Phillips, orchestrated the deal in such a fashion that he would be Draper’s boss. Draper doesn’t know if there’ll be a tomorrow, but he knows that he doesn’t want that tomorrow—so he says he’d rather leave his company than let Duck become president.

“I can’t see as far into the future as Duck,” Draper tells the partners. “But if the world is still here on Monday, we can talk.”

At the risk of more spoilers, I’ll leave out what happens as the show goes into its third season, but let’s assume the world doesn’t end in nuclear annihilation and Draper, more or less, gets his way. His resignation to the present but commitment to his future is a survival feature that could apply to anyone. When we approach things from a marketing perspective, we must always be looking forward and assume our firms will be there on Monday. How would Don Draper handle these chaotic times? Let’s take some classic quotes from the seven-year AMC series and find out.

“If you don’t like what’s being said, change the conversation.

”When the rule of law is threatened from the top, the downhill ramifications can be serious. As firm administrators, it’s important to recognize and reiterate that the rule of law is a bedrock principle and necessary for law firms to thrive—let alone exist. Stick to the principles. It doesn’t need to be a repudiation of one political faction or another, but a restatement of the importance of the laws and norms that help society function. The legal practice is a major cog in a functioning society. The conversation right now seemingly is of a society on the rails. We can change that conversation, reminding everyone that we enjoy a system of laws borne from the longevity and tenacity of the U.S. Constitution.

“Make it simple, but significant.”

The inundation of Facebook rants, rushed blogs, and hairbrained podcasts has muddied the media landscape. When things get complicated, there is a tendency to overcomplicate the message. That couldn’t be a worse idea. In a loud and chaotic time, people look for simplicity and continuity. A simple statement or picture reminding your clients and connections that you’re still there, waiting, and willing to help is all that is needed. Not every crisis deserves a critical response. A warm and short message is what is needed. It could be as simple as saying “We’re Here.”

“The day you sign a client is the day you start to lose them.”

This is as good for an advertising firm as it as for a law firm. Once you bring in a client, you’re on the path to losing them. The speed at which that happens is entirely up to you. Forgetting to check in, mishandling a case, or just losing out to the competition—it doesn’t matter, it is easier to lose a client than to gain one. Now, more than ever, that needs to be appreciated. Clients and their families are feeling disconnected like the rest of us. Whether it’s your marketing department or the responsible attorney contacts, finding quick and meaningful ways to reach out and connect is as important as ever.

“I have a life and it only goes in one direction. Forward.”

If you’ve watched Mad Men, then you are familiar with Don Draper’s unusual backstory. It has its moments. Draper, however, consistently makes something out of nothing—often to his own surprise. What matters, though, is that he doesn’t let himself get too hung up on the past. It was what it was and his survival means moving forward. 2020 is over. 2021—not a great start. But what happened yesterday, stays in yesterday. Make every action knowing that there is a future and reassure clients the same. No, we can’t see that far into the future, but if we’re still here come Monday, let’s have a conversation.

Phillip Crivellone - Office Manager at Howard & Howard

When the days run together, what makes a digital meeting stand out?   From creating digestible topics and tailoring the length of the video to interest the audience enough to pick up the phone and call, to creating an engaging and interactive experience for attendees for a virtual event, legal marketers discuss and share their best ideas in virtual legal marketing.

John Albrighton is the Director of Marketing and Business Development at Neal Gerber Eisenberg, a Chicago-based law firm dedicated to handling sophisticated matters for entrepreneurs, public companies, and private businesses and their owners. John leads a team responsible for the development and execution of the firm’s marketing and business development strategies and initiatives including pitch and proposal development, branding and external communications. He previously served in marketing and business development roles at two different AmLaw 200 firms, a global financial advisory firm and an international commercial bank.

Jason Klika is Marketing & Business Development Manager at HMB Legal Counsel and a member of the LMA’s Midwest Board of Directors. He partners with attorneys on their marketing and BD initiatives and leads the strategic marketing and business development efforts of HMB and its practice groups.

Megan McKeon, a licensed attorney, is Director of Business Development at Clark Hill PLC. Over her 20-year career, she has led hundreds of attorneys through strategic marketing and business development efforts, including client feedback interviews, client engagement and practice development planning, and industry and client teams deployment. Megan is Immediate Past President of the Legal Marketing Association’s Midwest Region.

John Byrne has been the Chief Marketing Officer for Chicago-based Gould & Ratner LLP since 2016.  His top priority is supporting the firm's delivery of unparalleled service to its clients.  During his more than 25 years in the legal profession, he has been a practicing lawyer, as well as an in-house marketer and consultant to several AmLaw 200 law firms.

The answers:

1. Domino’s Pizza

2. Sony Ericsson

3. Louis Vuitton

4. Sporcle

5. Nissan

6. Heineken

7. Hyundai

8. Java

9. LG

10. Walkman

11. Twitter

12. Michelin

13. MSN

14. Shell Gas

15. Skoda

16. Red Bull

17. Taco Bell

18. Motorola

19. Evian

20. UPS

21. World Wildlife Fund

22. Google Chrome

23. Pringles

24. HSBC Bank

25. Visa

26. Ferrari

27. Firefox

28. Izod

29. Lamborghini

30. PlayStation

31. Target

32. X-Box

33. Skype

34. Converse

35. Logitech

36. Amazon

37. Calvin Klein

38. Blockbuster

39. Reebok

40. Dreamworks

41. Wikepedia

42. Warner Brothers

43. Yahoo

44. McDonald’s

45. Nike

How to Create a Cross-Marketing Collaboration Framework that Drives Business and Client Value

 Moving to a virtual environment provided attorneys with plenty of lessons, from how to conduct a deposition over Zoom to how to make the world’s best banana bread.

Attorneys quickly mastered the art of conducting client business virtually. But they also saw client needs extending beyond their own practice area. They realized that their colleagues in other practice groups could provide helpful recommendations and solutions.

Now more than ever, attorneys can’t afford to be siloed from fellow practitioners. Unfortunately, the cross-marketing lessons have been much harder. No more water cooler chat, abbreviated or canceled partner retreats and the lack of new lateral partner roadshows have left firms scrambling and feeling the pain.

The Solution: Virtual Cross-Marketing Collaboration Framework

The goal of a cross-marketing collaboration framework is to develop a program that recreates the best parts of in-person retreats where ideas flow and partners leave energized about new opportunities.

A successfully implemented cross-marketing program will:

1. Create opportunities to deepen relationships with institutional clients;
2. Foster connections and relationships among attorneys across practice areas;
3. Identify concrete steps attorneys and marketers can take to facilitate business development.

This can be accomplished through thoughtfully curated, virtual small group meetings that provide structure and encouragement for lawyers to make connections across markets and practices. During these meetings, each attorney shares one client’s story, then leads a discussion about presenting the client with additional services and/or offerings in new markets. Concrete action items and next steps are identified before the call ends.

The Follow-Up: The Most Critical Step

If the intention was simply to re-energize attorneys after months of work-from-home-fatigue, stop reading here. But if it was to drive business and create even more client value, follow-up is the most critical component.

1. Review the action plans from the small group meetings across the firm and identify naturally occurring overlaps;                                                                                                          - Where attorneys across the firm work for different aspects of one company, create client teams whose focus is maintaining relationships;
2. Track activities either with project management software or a spreadsheet;
3. Hold quarterly follow-up events to reconnect attorneys with their original teams to discuss progress. As attorneys get the hang of the process, shake up the groups to make new introductions with fresh break outs.

Without a doubt, 2021 will be filled with as many uncertainties as its predecessor. The myriad of first-time issues that clients are, and will continue to, inquire about presents the opportunity to generate greater attorney collaboration and ultimately add value to every client question.

Jocelyn Brumbaugh is the founder of Builden Partners, a leading marketing strategy consulting firm. Builden works with large and mid-size law firms to turn random acts of marketing into forward-looking strategies that build brands, keep lawyers top of mind with clients and prospects, and drive revenue. Her experience includes 20+ years in marketing and communications roles at top law and financial services firms, including Baker McKenzie, Foley & Lardner and financial services firm Citadel. Contact her at jocelyn@buildenpartners.com.

It’s hard to believe that almost a year has passed since over half of professionals were suddenly forced into a remote work environment. That amount is now down to 33% of professionals working remotely full time, with another 25% working remotely part time.[1] While the overall number of people working remotely full time has declined since March 2020, a societal shift in where clients are working is having an impact on how we develop business.

The foundation of pre-pandemic business development was built on interactions such as in-person client meetings, conference attendance, speaking engagements, and in-person social gatherings. Overnight, these types of interactions came to a screeching halt. Even after vaccines are available, for the vast majority of the public, we will see more remote gatherings as a way to minimize travel and create efficiencies. Given this reality, law firms must train their lawyers to thrive in this environment to create new client relationships and expand existing ones.

Ways to Connect with Clients Virtually

In March 2020, virtual events were a novelty—with goats showing up at team meetings, a plethora of virtual happy hours, and a constant stream of webinars. Now, after a year, we must get more creative and strategic about how we engage with clients virtually. For example, consider the following:

• Roundtables. If limited to 25 people or less, roundtables can be an intimate forum for client industry peers to exchange information. Start off with a brief introduction and a few slides so that the clients have time to chat about issues of importance to their business. The focus should be the client business needs and not the presenters.
• Hobbies. Perhaps you discover that a group of clients have a shared interest in painting. Arrange a “paint and sip” class as a way to connect industry peers. Another emerging trend is exercising from home. Organize a group of clients for a Peloton ride in the same class. Cheer each other on with virtual high fives. Think creatively!
• Breakout rooms. Capitalize on breakout rooms in virtual platforms. These rooms provide a mechanism to create small discussion groups for subtopics and for participants to get to know one another.
• Articles co-authored with an existing or potential client. There is no greater compliment than letting clients know they are a subject-matter expert and you want to collaborate with them.
• Client-focused e-communications. Clients are inundated with alerts and advisories. Consider forwarding an existing alert to a client with a custom note of how this development impacts the client’s business. This personal touch is a differentiator. 
• Virtual lunches/breakfasts. Invite a client to share a virtual meal to catch up. Ask clients what time is best for them and work around their schedule, which may be out of the ordinary given home schooling.
• Webinars. This platform was used before the pandemic, but consider hosting a series of shorter sessions over a period of time, like a month. This would not only allow for topic development, but also take into account client time constraints.
• Hybrid meetings. Focus on utilizing technology to engage with attendees who cannot be present in person. Even post-pandemic, the realities for executing events with two tracks—an in-person track and a virtual track—will become the new reality.
  

Virtual Fatigue Is Real

Whatever delivery mechanism you choose, you must curate your content carefully. Converting a multiday conference into a virtual event has to be modified to get the best engagement. Time has become more scarce, with companies reporting that 60% of their employees are working more hours and 63% saying employees are spending more time in meetings.[2]  Clients have increased responsibilities with family obligations that have created new pressures. Their time has never been more valuable, and the stress that they feel is unprecedented.

Virtual Programming Must Provide Value

When inviting clients to virtual programming, design the program with them as the focus, keeping value top of mind. There are opportunities to be had in getting clients to participate virtually in events that previously would have been geographically difficult to attend in person. But although a client won’t have to spend two days traveling across the country for an event, and can instead attend it virtually, the value must still be there. Use the time to focus on the business challenges your client is facing. Another way to creatively provide value is by establishing peer groups of clients in specific industries to discuss industry challenges.The post-pandemic future requires every interaction with existing or potential clients to be tailored to their legal and business needs and challenges.

“As uncomfortable as initiating and fostering relationships virtually may be for some practitioners, is it critical for your future success,” says Jonathan R. Fitzgarrald of Equinox Strategy Partners, who coaches and trains lawyers on how to grow their practices in the new, virtual environment. “Whether you’re a first-year Associate or a seasoned Partner, relationship building in a virtual environment requires new skills. Being successful at it is one part skill development—how to properly position yourself on a video call, how to keep others engaged, how to interpret non-verbal signals—and another part practice. Resist the temptation of sitting on the sidelines until this pandemic blows over by finding a way to embrace this new environment.”

Virtual Environment Attorney Training Is Key

The virtual environment can be an intimidating place to present. Having a curated environment and proper equipment (such as microphones and lighting), along with adjusting speaking patterns for this type of medium, is key to success. Consider investing in training to ensure that the firm’s attorneys feel confident in this type of environment.

There are qualified consultants who can help tailor programs for your attorney population. Christine Clapp, President of Spoken with Authority and author of Presenting Virtually, provides attorney training for the virtual environment. “Whether your attorneys realize it or not, they are constantly presenting virtually when they are speaking to one colleague or client via videoconference, to a small group during an online meeting, or to hundreds or thousands of peers at a virtual conference or event,” she says. “The nuances of professional presence and conveying confidence in computer-mediated situations are not obvious — you have to teach these skills so attorneys can achieve their communication goals and be more effective at work in the short term, and reap the personal and environmental benefits of occasional or even frequent remote work after offices reopen."

Client Interactions Can Be Humanized

Being remote levels the playing field. You have a window into someone’s home and what they are dealing with day to day, such as child interruptions, a barking dog, or other family members working close by. Take advantage of these relatable situations as a way to create more meaningful interactions with clients. Bond over the distractions and aspects of working virtually that are challenging.

In conclusion, thriving in a post-pandemic world will require the ability for law firms and lawyers to be creative, engage clients both in person and virtually, and be forward-thinking regarding client business needs. Additionally, thinking outside the box of traditional business development vehicles will be key to success. Tailoring content in this type of environment requires effective two-way communication with clients, asking what their preferences are and delivering value by adapting to their needs.

[1] Brenan, Megan. “COVID-19 and Remote Work: An Update.” Gallup, October 13, 2020. 

[2] Feintzeig, Rachel. “What the Numbers Tell Us About Work Right Now.” The Wall Street Journal, December 13, 2020.

Amanda Schneider is the Chief Marketing Officer for Epstein Becker Green (EBG), a national health care and labor and employment super boutique. She has over 15 years of experience in legal marketing and business development. She also serves as part of the leadership team for EBG and Deloitte Legal’s strategic alliance. Prior to working in legal marketing, Schneider held positions in corporate marketing and product development as well as government service at The Department of Health and Human Services and the National Institutes of Health. Schneider was instrumental in the writing, development, and publishing of Ending the Document Game: Connecting and Transforming Your Healthcare Through Information Technology as part of The Commission on Systemic Interoperability authorized by the Medicare Modernization Act in 2005.