THE IOWA LAWYER

President’s LetterDear Members,The past few weeks have createdenormous challenges for all of us andour communities. The Iowa State BarAssociation has been working hard toensure that during the COVID-19 crisiswe are supporting our members intheir service to clients, the courts andtheir communities. Below is an updateon the ISBA’s work during this time.Branch, in conjunction with the IowaAcademy of Trust and Estate Counsel,on these issues. The Probate, Trust &Estate Planning Law Section providedvaluable input on the issue. In the emergency proclamation issued on March22, Gov. Reynolds addressed remotenotaries and witnessing -health-emergency).we hope is helpful to our members.Please visit iowabar.org/COVIDResourcesto see the latest information.CLE OFFERINGSThe ISBA will continue its CLE offerings exclusively via remote accessat least through the end of April.JUDICIAL BRANCHThe Iowa Judicial Branch has significantly curtailed activities includingpostponing civil and criminal trials. TheWe do not know what will happen inISBA website maintains a list of all of theGiven this pandemic and the variousIowa in the future days. Other states have Judicial Branch COVID-19 situation didirectives issued by Gov. Reynolds, weissued “Shelter in Place” orders that place rectives. We also will keep you updated onrealize that the practice of law needssignificant restrictions on businesses butany judicial developments as they occur.to fundamentally change. We mustprovide certain exceptions to allow for esdo so quickly – it is not business assential services. In response to the crisis, OUR COMMUNITIESusual. It is no longer possible to conAccess to Justice is a fundamental rightlaw firms around the state have arrangedtinue to regularly go into the officeto have their work force work remotely to of all Iowans and the COVID-19 crisisto work and have in-person meetingsthe maximum extent possible. Still, there has created unexpected challenges.with clients. Working remotely is nowIowans need help in navigating throughare some matters that require law firmsa necessity during this period.this unexplored legal landscape and itstohavepersonnelattheirofficesinorderTo help our members transition to ato provide critical law services. The ISBA emerging legal issues. We are workingremote office setting, the ISBA is dewith Iowa Legal Aid and the Polk Countyhas submitted a letter to Gov. Reynoldsveloping various webinars, the first ofrequesting that legal services be included Bar Association Volunteer Lawyers Projectwhich took place on Tuesday, March 24.to have Iowa lawyers from around theon the list of essential services in theThe speakers for this webinar were Nickstate respond to questions from Iowansevent of a Shelter in Place order in Iowa.Critelli, the chair of the ISBA Ethicsthrough a COVID-19 legal hotline.and Practice Guidelines Committee, TreCOUNTY RECORDER FILINGS The ISBA also sponsors Free LegalCritelli from the Office of ProfessionalThe ISBA became aware that countyAnswers (https://iowa.freelegalanswers.Responsibility, Christy Cronin fromrecorder offices around the state wereorg/), which makes available opportuthe ISBA, attorney Brooke Trent andstarting to close their offices for realnities to provide from your computerJoseph Peiffer, Ag & Business Legalestate filings. This closure createdshort-term, pro bono legal services.Strategies. They provided advice on howsignificantissuesforrealestatetransParticipants can go to the website andto adjust to a remote legal practice toactions. The ISBA has been workingpick questions they feel comfortable1,000 attendees. The recording of thatwith Iowa Title Guaranty and the Iowaanswering and submit responses throughwebinar is available at: iowabar.org/the website. Please check out the site.COVIDwebinars. More programming has Land Title Association to advocate forrelieftoallowforrealestatefilingstoWe continue striving to support ourfollowed and continues to be planned.continue. In a March 21 memoranmembers. More information is includdum to county auditors, recordersed on the following page. Please letREMOTE NOTARIZATIONand treasurers, Gov. Reynolds stronglyme know if you have any suggestionsAND WITNESSINGencouragedthattheofficesandfullon what else the ISBA should be doingMany of our members have clients whorangeofvitalservicesprovidedbytheseduring this challenging time. We hopeneed to have important veryone is staying safe and healthy.documents executed, including wills,trusts, powers of attorney, real estatedocuments and contracts. Some of these ISBA COVID-19Willard L. "Bill" Boyd IIIRESOURCE WEBPAGEclients may be in nursing homes andNyemaster Goode, m, 515-283-3172hospitals, where it is currently impossibleinformed of developments relating to theto meet with them in person. The ISBACOVID-19 situation. The ISBA webpagewas in communication with both Gov.has links to important information thatReynold's office and the Iowa JudicialSUPPORT OF MEMBERS INSERVICE TO THEIR CLIENTS ESSENTIAL SERVICESAPRIL 2020 THE IOWA LAWYER5

THE ISBA IS HERE TO HELP YOUDURING THE COVID-19 PANDEMICREMOTE CLEsThe ISBA has switched to allremote CLEs and meetings, so youcan stay up to date on the latestdevelopments in your practice areafrom the safety of your home.MENTAL HEALTHSUPPORTThe ISBA’s Lawyers AssistanceProgram is at the ready to assistyou during this time of crisis. Visitiowalap.org for more information.Mental health resources canalso be found at iowabar.org/COVIDResources.FREE INFORMATIONAL WEBINARSThe ISBA is producing free informational webinar content related to COVID-19.Upcoming webinars can be found at iowabar.org/events. Recorded webinarscan be found at iowabar.org/COVIDwebinars. Topic examples include:HINTS AND TIPS ON PRACTICING REMOTELYLATESTINFORMATION ONCOURT SERVICECHANGESThe ISBA has been sending outregular communications relatedto changes in court services andaccess on behalf of the IowaJudicial Branch and the Northernand Southern Districts of Iowa.PRO BONOASSISTANCEThe ISBA has partnered with IowaLegal Aid and the Polk CountyVLP to provide a public hotlineand recruit volunteer attorneys toassist pro bono with legal mattersrelated to COVID-19. The hotlinephone number is 1-800-332-0419.PRACTICING LAW IN THE SHADOW OF COVID-19HOW TO STAY CYBERSECURE WHILEWORKING FROM HOMEPRACTICAL STEPS TO MAKE YOUR FIRMPROFITABLE AND EFFICIENT (.AND REMOTE)ASSISTING FAMILY LAW CLIENTS WITHCOVID-19 RELATED ISSUESCLIENT RELATIONS AND LAW FIRM FINANCESCORONAVIRUS CONSIDERATIONS FOR LITIGATORSTEXT GUIDESAND RESOURCESOne hundred-plus guides andarticles are posted to the websiteiowabar.org/COVIDResources,with more being added daily. Theycover a broad range of topics whichare categorized for viewing ease.6THE IOWA LAWYER APRIL 2020DIRECT CHANNELTO LAWMAKERSAND STATEOFFICIALSThe ISBA has been in directcontact with the Governor’s Office,Secretary of State and otherlawmakers and elected officialsto be the voice for Iowa lawyersas they navigate new legislationand state directives.INFORMATIONFOR THE PUBLICThe ISBA has provided accessto dozens of free legal guidesand videos on its public websiteIowaFindALawyer.com to helpmembers of the public navigatethe various legal issues occurringduring this time.CYBERSECURITYSUPPORTThe ISBA has authorized a threemonth trial period of Trustifi emailencryption while you work fromhome, to help you and your firmbetter prevent phishing attacks.Cybersecurity tips and resourcescan also be found at iowabar.org/COVIDResources.

Coronavirus LiabilityWHAT TAY INFORMEDBy Peter Susserand Tahl TysonWith the rapid global spread ofcoronavirus, companies shouldfocus first and foremost onemployee safety. And as they’re reviewingtheir strategies, policies and procedures,many leaders are specifically wonderingabout their legal risk. Not having adequate communicable-illness policies andresponse plans could expose them to alaundry list of HR-related legal concerns.Most countries have laws designedto protect employees from physicalharm at work. In the United States,employees are protected under theOccupational Safety and Health Act,so if an employee becomes infected atwork, in some circumstances the employer may face penalties. Unpreparedemployers may be exposed to lawsuitsrelated to workers’ compensation,invasion of privacy, discrimination,unfair labor practice and negligence.The good news is that with carefulattention to employee safety and legalpreparedness, employers can minimizeemployees’ risk of infection and theirown legal risks. Following are eight stepscompanies should take to these ends.The value of these efforts, of course, isrelevant to any life-threatening infectious disease, not just coronavirus.Start by identifying authoritativesources of public health guidance onthe epidemic, and stay up to date onofficially recommended and mandatedactions in the applicable jurisdictions.These sources include The Centersfor Disease Control and Prevention,The World Health Organization,The European Center for DiseasePrevention and Control and country-specific public health guidance.This official guidance should serveas the foundation for organizationaldecisions about health- and legal-risk mitigation. Being able to demonstrate corporate policy alignment with official recommendations can be an important legalsafeguard in cases where the company’sinfection-control efforts are challenged.INTENSIFY COMMUNICATIONSAND HYGIENEFor legal and practical reasons, companies need to be able to show that they havegiven employees accurate informationabout ways to prevent the spread of infection — and that they have provided peoplewith the means to act on that information. Thus, organizations should educateemployees, in advance of any workplaceinfection, about modes of transmission andsymptoms by sharing specific public healthguidelines and, more broadly, directingstaff to the official sources of informationon which the organization will rely.In addition, employers must implementMEDIATION ANDARBITRATION SERVICESAll types of Civil Litigation, including: Business and Commercial Construction Employment Intellectual Property Personal InjuryMichael A. Dee515.242.2475 dee@brownwinick.comAPRIL 2020 THE IOWA LAWYER7

Coronavirus Liabilitymeasures to reduce the risk of workplace transmission. For example, publichealth guidance for reducing transmission includes ensuring that employeeshave easy access to hand-washingfacilities and/or hand sanitizers andthat public surfaces such as counters,doorknobs and elevator buttons areregularly disinfected. Employers mayalso consider changes to reduce overcrowding, such as facilitating remotework, shift work and perhaps physicallayout changes. Such measures may helpprotect workers from infection and helpprotect organizations from liability.Employers should also instruct staff toinform management if they have beenexposed to the virus or show symptomsof infection, or if they, or a member oftheir households, have particular vulnerabilities such as a weakened immunesystem that may require enhancedprotections from infection. Further, staffwith symptoms of infection should besent home or instructed to stay home,and visitors who have been exposed orwho have symptoms should be excludedfrom the workplace. Failure to providethis guidance can potentially expose acompany to liability should employeesbecome infected in the workplace andit can be shown that management hadnot communicated about this policy.(Although disability discrimination lawsprotect employees with covered healthconditions, limitations can generallybe imposed if there’s a direct threatto the health or safety of others.)CONSIDER RESTRICTIONSON RETURNING TO WORKWhile employers risk discriminationclaims if they base decisions to restrict8THE IOWA LAWYER APRIL 2020employees from work on grounds ofrace or national origin, they can imposereasonable, fact-based restrictions ifthere is a direct threat to the healthor safety of others. An employer canjudge, by applying official guidelines orwith input from a medical consultant,whether and when an employee whohas been ill or who has potentially beenexposed can safely return to work.Written policies should be explicitabout when employees with potentiallytransmissible conditions will and will notbe allowed back, and relevant communications should be documented.BE MINDFUL OF ANEMPLOYER’S DUTY OF CAREMost countries have laws designed toprotect employees from physical harmat work. For multinational employersand those with mobile employees, it isimportant to identify the applicablecountry laws (which may be more thanthose of a single jurisdiction in somecases), as one size will not fit all.In the United States, employees areprotected under the Occupational Safetyand Health Act (OSH Act). Section 5(a)(1) of the OSH Act is the general dutyclause, which requires employers toprovide their employees with a workplace “free from recognized hazards likely to cause death or serious physicalharm.” The federal Occupational Safetyand Health Administration (OSHA)can cite employers for violating thegeneral duty clause if there is a recognized hazard and they do not takereasonable steps to prevent or abatethe hazard. However, OSHA citationscan only be based on standards, regulations or the general duty clause.State-mandated workers’ compensation programs, and a separate programfor federal workers, provide benefits toeligible employees who suffer job-related injuries and illnesses (these varystate by state). As a rule, where theharm arises out of and in the course ofemployment, employees are limited tothe prescribed workers’ compensationbenefits and cannot recover damages forpain and suffering or mental anguish.Some states allow additional awards —beyond normal workers’ compensationawards — when injury results from anemployer’s “willful” or “intentional”act, which might include failure toprovide appropriate protections.Businesses also have to considerliability to third parties, such as customers, which may not be so limited.For example, a restaurant employeeinfected on the job will only be entitled to workers’ compensation, buttheoretically the patrons they mayinfect could seek greater damages.EVALUATE LEAVE AND PAYEmployers should analyze theirlegal obligations to provide employeeswith leave in the event of sickness ordisability and evaluate whether theirpolicies need to be adjusted in thecurrent circumstances. In the U.S., theFamily and Medical Leave Act (FMLA),the Americans with Disabilities Act(ADA), and state workers’ compensation laws will apply, as well as any contract and policy language. Exclusionsfrom insurance policies should beidentified — for example, many travelinsurance policies exclude pandemics.Drawing on this analysis, companiesshould consider under which circumstances they would want to extendor expand benefits and protections,and they should evaluate their levelof income protection for employeeson leave, perhaps adjusting benefitsplans for employees who exceed theirsick-day allotment in order to supportsick employees who must stay home.It is important to look beyond theimmediate legal requirements to thebroader business and legal implications.For example, a business may not belegally required to pay an employeeduring a period it bars him or her fromthe workplace because that individualwas on personal travel to a place wheretransmission was occurring. However,choosing not to do so makes it more

Coronavirus Liabilitylikely that they prematurely return tothe United States, care should be takenwork, thereby infecting other staff,to do so in compliance with the Generalrisking business continuity, legal liability Data Protection Regulation (GDPR).from third parties such as customers, andcontributing to an increase in infections. PLAN FOR A WORST-ALLEVIATE STRESSAND ANXIETYStress and anxiety related to coronavirus infection could also become a legalconcern. The legal standards will varyby jurisdiction. For example, employersin the United Kingdom have a duty toassess the risk of stress-related, ill healtharising from work activities, and they arerequired to take reasonable measuresto control such risks. In some cases,this may mean taking steps beyond theminimum if doing so is not unduly burdensome to the employer and mitigatesthe psychological burden on the employee. For example, rather than terminatingthe employee for refusing to come tothe office due to fear of contagion, eventhough all officially recommended precautions have been taken, an employermight be more flexible in allowing timeoff or remote working arrangements.Such steps can help U.K. employersavoid claims of unfair dismissal.Employers should be aware that mentalhealth conditions such as germophobiamay be protected as a disability underlaws such as the Americans with Disabilities Act and require that employers take amodified approach pursuant to reasonable accommodation requirements.CASE SCENARIOContingency planning may include, forexample, temporary succession planningfor key decision-makers, and understanding and preparing in advance for thelegal requirements in cases of furloughsand layoffs. Many jurisdictions requiremore formal procedures and notifications for layoffs above a certain numberof employees. A failure to comply canhave severe penalties for employers andeven personal liability in some cases fortheir leadership. Planning ahead in orderto stay compliant is an important part ofan organization’s resilience program.This article first appeared in HarvardBusiness Review on March 4, 2020.It can be found online at: bligations-around-coronavirusPeter Susser(psusser@littler.com)is partner in the globalemployment and laborlaw firm, Littler Mendelson,based in Washington, D.C.Tahl Tyson(ttyson@littler.com) isa partner in the globalemployment and laborlaw firm, Littler Mendelson.She is a U.K. solicitor basedin Seattle, Washington.PROTECT PRIVACYEmployers should understand whichpersonal health data an employeemight be obligated to disclose if he orshe becomes infected or is at high riskfor infection — likely, anything thatcould interfere with the employee’sability to perform the essential functions of the job, or that could increasethe risk to coworkers or third partiesthrough workplace contact. Failure tounderstand the legal obligations inrelation to such data could expose thecompany to breach of privacy claims.Fortunately, even rigorous privacy rulesallow employers to disclose employees’protected health information to authorities for public health purposes. That said,all such data must be handled within theorganization’s data privacy protectionframework, and if such data is beingtransmitted from the European Union toAPRIL 2020 THE IOWA LAWYER9

HOW TO STAYCYBERSECUREWHILE WORKING FROM HOMEBy Megan Howard,Pratum Director of Security ServicesAs the United States works to flattenthe curve and slow the spread ofCOVID-19, much of the Americanworkforce is being sent home from theoffice. This presents some technical andsecurity challenges for business ownerslooking to protect staff’s health and thewell-being of the organization. If youare preparing to send your employeeshome in response to coronavirus, thereare a few things you need to preparebefore making your business remote.what to include in a policy/standardfor any organization choosing to usetelecommunication. There are alsocybersecurity threats listed for everyoneworking remotely to be aware of. Youcan find their recommendations underthe NIST publications, titled “Guide toEnterprise Telework, Remote Access, andBring Your Own Device (BYOD) cialPublications/NIST.SP.800-46r2.pdf )SET A SECURITY POLICYWhile your employees are workingremotely, you should provide secureconnectivity to corporate resources. Organizations that have never allowed forremote work will need to make resources available that were only accessibleinternally before now. There are a fewways you can help ensure the security ofyour network, while staying connected.Before sending your staff home, makesure you have a security policy in placefor remote work. Employees may notbe aware of the security measures theyshould follow, or how to safely conductbusiness from home. For many, this isthe first time their jobs have been doneremotely. Creating written-out guidelines helps educate your staff, whilekeeping your company safe. This wayeveryone will be on the same page andwill hopefully lessen any confusion.NIST

State Bar Association Facebook page. 4 THE IOWA LAWYER APRIL 2020 APRIL 2020 THE IOWA LAWYER 5 . Matthew F. Berry Clear Lake 641-357-7296 berrylaw@cltel.com . The speakers for this webinar were Nick Critelli, the chair of the ISBA Ethics and Practice Guidelines Committee, Tre .