By Jessica Shraybman / Shraybman Law

On March 11, 2020, COVID-19 was declared a pandemic. It’s beyond regional and continental. It’s now worldwide. And particularly in South Florida, where our economy is heavily dependent on tourism, hospitality, and financial and personal services, we’re feeling the hit hard.

In a matter of days, I’ve had numerous conversations with clients, colleagues, and friends. Thankfully, everyone is healthy and with access to toilet paper. Less jovially, many of them have had to close businesses (for some, indefinitely; for others, permanently), others have already been laid off, and others are still having to work as usual (ie not remotely).

Jessica Shraybman

All around, I’m seeing people behave frantically, hearing people worry about whether they’ll make rent, and feeling people grow more and more anxious by the minute. There’s little I can do from my home office. Except this… offer the knowledge I have to help those who are struggling. So, below are some thoughts (and a little optimism) for businesses and workers, which I hope will be useful. Even for just one person.

For Employers:

The first rule of coronavirus response and as inscribed on the cover of the Hitchhiker’s Guide to the Galaxy: DON’T PANIC! Once that’s established, continue as described below.

  1. Follow the Rules (Old and New).

Employee health and safety, always, should be your top priority. As an employer (whether you’re a startup with mostly contractors or a corporate enterprise with hundreds of employees), you have to balance keeping genuinely sick employees away while also ensuring no one abuses the ability to take sick leave.

On March 18, President Trump signed the Families First Coronavirus Response Act. The FFCRA expands upon already existing labor and employment laws. Specifically, it includes the Emergency Paid Sick Leave Act (the “EPSL Act”) and Emergency Family and Medical Leave Expansion Act (the “EFMLE Act”). Make sure you know whether and how these new laws, which impact leave, paym, and notice, apply to your company and employees.

Our take: be kind and generous to your team. Err on the side of caution and give your team the benefit of the doubt, especially as reports have shown corona symptoms may not be obvious for weeks.

  1. In the Absence of Location: Communication, Communication, Communication.

People are anxious. Your team, suppliers, clients, and stakeholders. The pandemic may be out of control, but managing your people’s fears and expectations is not. During this time of uncertainty, the simplest way to do that is to over communicate.

Now that the CDC has officially advised telecommuting (and just under 50% of organizations have heeded that advice), many teams are working remotely. For some, like knowledge workers and sales teams who normally have the ability to work from home, this isn’t new. Most others, however, are having to adapt to a new routine. To ensure this transition happens smoothly (or continues to run smoothly), be in contact regularly. You can synch and share calendars, implement virtual team meetings (using platforms like Google Hangout and Zoom), and increase the frequency of one-on-one and group conference calls.

You must take the lead. Let your team know you’re keeping on top of developments and share with them the impact this is having on business. It’s understandable that in the absence of visibility, you and your managers may worry about productivity. Don’t. Your team is just as concerned for their livelihood as you are for your business. And remember that communication must be two-way. Listen to what your people tell you, both about their work and also how they are being impacted personally. If there are ways you can make systems more efficient, or even help one working parent on your team find childcare, do. Now more than ever, you have to trust and support each other.

These same principles also apply to managing your customers and stakeholders. Last week, one of our clients hosted their annual shareholders’ and investor meetings virtually. If your company’s governing document (like your Operating Agreement or Bylaws) allows, this is a great way to keep business moving. Your Boards can meet by proxy to discuss and vote on items of import, and stakeholders can stay updated and at ease seeing that you are maintaining composure and continuing business as usual, as best as possible.

  1. Written Policies and Agreements.

The time is now. Review your written agreements and policies; both internal documents like Employment Agreements and Policy Handbooks as well as external contracts (see section titled “Force Majeure” below for more thoughts on that).

Internally, had you previously thought about and planned how to handle this sort of situation? Do you have either an Emergency or Business Continuity Plan (a “BCP”) in place? If not, make one. A BCP is not just for corporations mandated by insurance policies to have one. In fact, having a BCP is itself a form of insurance for small businesses (and certainly startups and entrepreneurs) with fewer resources that may be paralyzingly affected by an emergency or crisis like this.

Creating a BCP is an opportunity for risk assessment. Some things to think about as you create your response plan include: what are your operational essentials? What are your vulnerabilities? What steps can you take and what alliances can you form to minimize the negative lasting effects? Who, internally, can you call upon (whether key employees or others) to take the lead to communicate internally to quell fears and externally to comfort clients? What are your policies on sending employees home? And please lord, do you have enough hand soap and sanitizer?!

If your team is now working remotely, consider putting together a Work from Home (or “Telecommuting”) Policy. This can be included in your existing agreements or as a standalone. A Work from Home Policy is a good way to set expectations as you transition to your new (hopefully short-term) normal. Key provisions might include: timekeeping, use of and access to equipment and materials (if your people need to purchase essential working tools like computer programs or other equipment, how will they be reimbursed? or, will and how will, the company supply these?), and what measures need to be implemented to ensure security of physical property and work product?  

Speaking of work product, and for anyone who has ever had a conversation with me about business, you’ve probably heard me say, “your intellectual property is one of your most valuable assets.” As you shift to having a remote team and maybe engaging new independent contractors and freelancers, it is tremendously important to ensure you have proper written agreements. Specifically, these agreements must include precise provisions related to Intellectual Property, like Work Made for Hire, Ownership of Company Property (including IP), and Confidentiality. Take appropriate steps now to secure chain of title and address all questions related to who owns what (especially since your team may now be using personal computers rather than company equipment, which may make the answer to that question arguable).

For Employees, Freelancers, Entrepreneurs:

The first rule of coronavirus response and as inscribed on the cover of the Hitchhiker’s Guide to the Galaxy:  DON’T PANIC! Once that’s established, continue as described below.

  1. Know Your Rights.

Your employer has a legal duty to protect your health and safety. The Occupational Safety and Health Act (the “OSH Act”) was signed into law by President Nixon in 1970 precisely for times like this. Though Florida has not adopted state level occupational safety and health plans, the federal OSH Act and general industry standards still apply.

Your employer’s duties to your health and safety go beyond maintaining clean and safe facilities. If your company is refusing to allow a Work from Home option, they may be in breach of their contractual obligations to you as well as a number of federal and state laws. Note, however, this is not a categorical imperative, and there are legal standards that must first be met.

For those who are not ill, the duty remains: you are entitled to a safe and healthy work environment, and there may be opportunity to structure working remotely. On the flipside, for those who (and who are these folks?) wish to continue working as usual, your employer may have the express right to require you to work from home. Furthermore, if you have an Employment Agreement, it may distinguish sick leave from work suspension. For many, this is an important question because it determines whether you get paid.

  1. Be Candid.

For those not accustomed to telecommuting or freelancing, coronavirus is causing a crash course and abrupt introduction to the “work from home” economy. Some of you may now be juggling work, spouse, and child (as though you weren’t before, but now it’s all at once). For those living or work alone, you may start to feel isolated without those moments for “water cooler” chit chat.

Whichever group you belong to, our advice here is the same as our advice to employers above. Communicate, communicate, communicate.  For those working with teams, see this as an opportunity to lead. If working from home jives with your routine and the transition has been painless, reach out to your colleagues. Could someone use extra help getting a task complete? Provide support where, when, and however you can. Some of your typically most focused colleagues may now be struggling.

Also important, and to maintain as much normalcy as possible, stay in touch with one another. Last week, several of our clients organized virtual lunch breaks and virtual morning coffees for their teams. The focus wasn’t on tasks or projects, but rather purely to stay connected on a personal level. Here we find another opportunity: to grow and strengthen our human bonds.

  1. Force Majeure.

Maybe you’ve been hired to photograph a wedding. Maybe you’re the supplier for a nationally distributed CBD product line. Maybe you’re on the cusp of closing a round of financing. There’s a common theme here: during this time, you or someone with whom you are doing business, may be unable to perform on a contractual obligation.

“Force Majeure” is a contract provision that excuses a party from performing if such failure is due to certain extreme, out-of-their-control, circumstances. Common examples are natural disasters, war, and, you guessed it, pandemics (note however, that Force Majeure provisions may be drafted broadly or narrowly so a global health crisis like corona may or may not be a qualifying event). Force Majeure is often brushed off as “boilerplate” – those contract terms to which most people don’t pay much attention. Again, if you’ve ever heard me talking about contracts, you’ve definitely heard me say, “‘Boilerplate’ terms are important!” Now, people understand why.

If you’re the one relying on force majeure to excuse you from performing (because let’s say, you were supposed to fly to Colorado to photograph a rock climb expedition, but now cannot travel), it’s up to you to determine whether this qualifies as a force majeure event. If you think it does, give notice to the other party immediately. Additionally, take whatever steps available to “mitigate” the impact. Propose alternatives if possible. Maybe the shoot can be rescheduled? If the climb is still happening as planned, can you recommend a substitute photographer locally? The extent to which you must mitigate the situation depends on how your force majeure provision is drafted, so give it a thorough read first (and if you’re not sure, ask your attorney if you have one).

If you are the impacted party, still – read the contract. What obligations, if any, do you have to mitigate the situation? Could you reschedule? If, going back to our photography example, a substitute is available and acceptable, work with your current photographer to transition the job. If, after all attempts have failed to “cure” the situation within a certain period of time, then you may be able to terminate the contract. In either scenario, most importantly, try to work things out amicably and in a way that’s fair to you both.

  1. There is Opportunity.

Many folks, whose health and safety are secured, are trying to be optimistic and look for opportunity. Some are starting their long dreamed of “side hustle” business. Others are finally shifting from corporate to freelance work. It may seem counterintuitive to take risks while the economy is facing a sharp downturn, but as more companies are also having to lean out, working with freelancers is a win-win. Companies lower overhead and you capitalize.

On Friday, we helped a landscape artist fulfill a lifelong dream. Having been laid off just earlier in the week, he finally established his own gardening service and nursery. In the past week, we’ve helped three other individuals, who had also just been laid off, create Service Agreements to allow them to start working as freelancers (both for their now-former employers as well as others). No doubt this is a very difficult time for many people. It’s also important to appreciate that for even just a few, there is a blessing to be found.

A Last Two Cents: There’s one topic I don’t hear about as frequently as it should be discussed, and so I’d like to end with this – HAVE SAVINGS! Ping-pong tables, free coffee, and meditation pods are great workplace offerings. Retirement plans and insurance stipends are great perks. They aren’t enough and they won’t hold you over during high tides. Whether you’re a business, entrepreneur, worker, or freelancer – HAVE SAVINGS! Put away some cash every time you earn some money. Keep it liquid and accessible.

“Emergency savings,” “runway”, “rainy day fund”, whatever you want to call it, just have plenty of it.

I love you all. Stay safe, be positive, and reach out if you need anything.

 Jessica Shraybman is the Founder and Managing Partner of Shraybman Law, a Business + Intellectual Property law firm that represents many of Miami’s small businesses, startups, and nonprofits.

 

 

 

 

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