As the world adjusts to the COVID-19 storm and learns new ways to cope and work, organizations face a multitude of challenges. First and foremost is keeping people safe, but organizations are also grappling with the complexities of remote work, supply chain disruptions, loss of revenue, IT resilience, among others. In addition, they must address stakeholder questions with few concrete answers to give amid a great deal of uncertainty.
One aspect of this situation that must not be overlooked is the legal one. Communicators and lawyers have a long history of having to collaborate, albeit not always smoothly, with each side protecting its own turf. The former’s mission is to safeguard reputation while the latter’s is to shield the organization from claims and liabilities.
The communicator’s job in the current situation is to provide up-front and transparent communication to both internal and external audiences, while relying on the lawyer’s expertise and evidence. “Lawyers are trained to seek out ambiguity in written documents,” writes Cathy Heeley, an associate with CS&A International. “They can therefore be a useful resource for crafting communications that say as much as it is possible to say at a moment in time, without over-committing or risking a third party misunderstanding of what the organization is trying to say.”
Legal obligations in the context of the COVID-19 crisis
Let’s first review some of the legal risks and obligations facing organizations in the current uncertain and volatile situation. Clearly, different countries have different laws relating to the impacts of a pandemic such as COVID-19. These differences make it complicated for organizations that operate internationally, and one size does not fit all. While this is basic for legal teams, it may be less so for communicators working in different locations under different legal jurisdictions.
Laws designed to protect employees cover some of the following areas:
- Protecting employees from physical harm at work.
- Employers’ duty of care.
- Stress and anxiety related to coronavirus.
- Announcing fatalities.
- Evaluating leave and pay.
- Restrictions on returning to work.
- Legal requirements in cases of furloughs and layoffs.
- Liability to third parties, such as customers becoming infected on company premises.
- Protecting personal data while protecting your employees.
- Immigration implications.
Other areas of possible legal obligations
Other possible commercial and business continuity legal implications can include:
- Cancelling events.
- Regulatory measures for financial services firms.
- Annual general meetings and dividend distribution.
- Changes to the planning regime to help suppliers and businesses.
- Rent mitigation negotiations between landlords and tenants.
- Closing deals when the office is closed.
- Temporary succession planning for key decision-makers.
While there are innumerable possible legal ramifications of a pandemic, many stakeholder questions will relate to one of more of these topics. Communicators must inform themselves to be able to craft credible answers and messages that help alleviate concerns and reduce the panic caused by lack of information or rumors.
Staying informed via reliable sources such as the Centers for Disease Control and Prevention, The World Health Organization, The European Center for Disease Prevention and Control, and country-specific public health guidance is a critical first step that will help organizations make well-founded health and legal-risk mitigation decisions.
As in every crisis, sound document management is crucial. Manage documents through document numbers, clarifying document owners, confidentiality, version control, crisis logs and other means. While legal is typically the custodian of this aspect of crisis management, the communicator must keep a comprehensive record of all actions, decisions, statements, Q&As, etc., related to internal and external communication. Such records may have to hold up in court.
Discipline and coordination
This complex array of potential legal obligations must be led by the legal team in close cooperation with other corporate functions such as human resources, communication, IT and security, as well as regulators and unions. This in itself is often a challenge.
Hold daily meetings of the appointed crisis team or COVID-19 task force to avoid gaps and conflicting information. This approach must remain in place through the peak of the crisis and beyond, even when the situation seems to be returning to normal.
Furthermore, initiate subject-specific sub-task forces to frame complex legal issues and allow communicators and lawyers to jointly to use their skills to turn legal-speak into clear and simple messages that are free of ambiguity. But who said simple was easy? “One of the lawyer’s roles on the crisis team is to act as the gatekeeper of the legality of all actions the crisis team proposes to initiate,” says Heeley.
So how can communicators and lawyers optimize their collaboration and pave the way for a productive output in a crisis like this?
The communicator’s should prioritize providing accurate, clear, consistent, timely and useful information, as well as reassurance on a range of critical points including job security and showing that you are in control. You cannot be credible without facts and reliable information. Yet reliable information is a rare and precious commodity in crisis, and even more so in our world overloaded with fake news, myths and rumors. Therefore, under the pressure to get information out quickly, the cool-headed, trained lawyer is an invaluable partner.
“That said, there’s no denying that lawyers can be inconvenient, especially when you are racing to get messages out,” says Heeley. “Indeed, the potential for conflict between the communications team member and the lawyer is ever-present. The default position of the lawyer may be to say nothing to stakeholders unless there is a legal obligation to do so. In fairness, this is the best way to minimize prosecution risks. It is not the best way to manage all risks, which is why it is essential for the communicators on the team to find common ground with the lawyer on how to manage all risks. This does mean it is OK to challenge the lawyers when they get too enthusiastic with the red pen on your draft communication. It doesn’t mean they are always wrong.”
Respect each other’s professionalism and contributions to the ultimate goal of protecting people and the organization. There is no better time to put this in practice.
Unprepared employers may be exposed to lawsuits related to workers’ compensation, privacy breaches, discrimination, unfair labor practice, and negligence, and this can easily become a communication challenge. “A crisis is not over until it’s really, really over” is CS&A’s 10th Commandment of Crisis Management. The recovery period can often be when the worst and long-lasting consequences of a crisis are felt.