Crossing Uncharted Waters: Working Differently in COVID's Wake

By: Andrew Deutsch

I volunteered to write this article about returning to the office thinking that I would have something interesting to say about how lawyers can help with legal issues related to the “new normal.” But it turns out that more knowledgeable, insightful, and experienced lawyers have already written about what lawyers should be doing in response to COVID.

I also ended up getting COVID in early August. Fortunately, it was a mild case, although I missed a week of work. I am now, again, back to the office on a hybrid basis, with Mondays and Fridays at home and the rest of the week in the office.¹

So, I took a different approach for this article. Rather than provide concrete legal analysis, this article reviews what changed during the pandemic, where we are now, and what we can do to make the most of our present, and likely future, working conditions. In short, we will need to adapt to new technology, empathize with our colleagues, and support diversity, equity, and inclusion efforts.

Then…

Where were you before the COVID shutdown in March 2020? I clearly remember Friday, March 13, 2020. I was at a happy hour after work. My colleagues and I were celebrating the new position that one of our coworkers would be starting on the following Monday—same company, different department. COVID-19 was on everyone’s minds. In fact, we had recently had a department meeting to discuss dos and don’ts for the pandemic and how we would respond to a potential workplace shutdown. Do wash your hands and clean work surfaces regularly; do not get too close to others or come into work if you have a fever or other symptoms.

All that was on my mind as I drank a beer with my colleagues. While looking out at the packed restaurant, I thought, “There’s no way this can continue.” It didn’t. Starting on the following Monday, I was—like so many of us—working from home. My home situation included my working-at-home spouse, and our two learning-at-home kids who also experienced what had to be one of the worst spring breaks ever.

And now...

Since then, we have gradually returned to more in-person activities. The Twin Cities return-to-office rate is, so far, better than the national average, and better than 23 other major markets, with a 63.4% office occupancy rate.

For the city of Minneapolis, Greater MSP reported a 44.6% occupancy rate in March, while the Minneapolis Downtown Council reported building occupancy at 55% this August. That is a significant increase from August 2020, when occupancy was just 12.2% of the downtown core.

Many businesses have taken a hybrid approach—with employees splitting time working in the office and at home—that doesn’t require employees to be in offices every day. I have not heard of any employers in the Twin Cities moving to a 100% remote workforce because of the pandemic. But we have all heard about those employers deciding to downsize their office space and let employees work remotely at least sometimes, and maybe all the time.

Returning to the office(s)

Many of us have returned to the office in some way. And while the trend favoring hybrid and remote work could shift, it feels like we have crossed beyond the point of return.

I returned to the office in June 2021. That was after leaving my previous job the winter before and starting a new job entirely at home. Saying goodbye over Microsoft Teams, and meeting new colleagues on Zoom, was, to put it mildly, suboptimal. But those experiences gave me an appreciation for just how adaptable we had been in the face of adversity.

Even more recently, I returned to the bar association offices in July for a Corporate Counsel Section officers’ meeting. It had been almost two and half years since I was last on the third floor of the City Center.

While it was great to be back to those familiar grounds, it was also surprising how plentiful parking was. (COVID does not seem to have affected road work, however, which keeps downtown navigation interesting.) Also surprising was how small the crowds were in the skyways and on the sidewalks. It felt more like a weekend, or maybe an evening, than the middle of the day on a Thursday.

Talking with some of the bar association staff before I left, we agreed that things had likely changed forever. But we also agreed that those changes were not all bad. Thanks to the magic of technology, we had actually seen increased attendance and participation in our events and continuing legal education courses, with new ways to engage with our members.

Harnessing technology

Technology provides tools for us to collaborate, or even just to see one another, no matter where we are located. In those long-ago days when I started out working as a law clerk and then a lawyer in private practice, I never had a video conference meeting with anyone. I remember once taking a deposition over the phone for a remote witness who had a minor role in a case. It made sense at the time because an-hour long deposition did not justify the time and expense of a cross-country flight. But now I could not imagine taking anyone’s deposition, no matter their testimony or role, unless I could see them. Times have certainly changed.

Still, we lawyers are a cautious bunch. Some of us are more hesitant to try new technology. But when the pandemic forced our hand, we adapted fairly well. That included meetings on Zoom (or Skype, Teams, WebEx, etc.), coffees on Zoom, networking on Zoom, and even happy hour on Zoom. Zoom fatigue, indeed.

We found ways to connect with each other even though we remained apart. Those efforts brought familiarity with technology. That familiarity brought comfort. And that comfort brought a willingness to use the technology in other settings.

Hard to imagine, but there was a time when I would have had no idea how to schedule a video meeting, share my screen, mute attendees, and all the myriad other things I now do so often. These days, it’s second nature.

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Even for those of us who might be more resistant to change, we have a professional and ethical obligation to learn to use technology. 

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Even for those of us who might be more resistant to change, we have a professional and ethical obligation to learn to use technology. The Minnesota Rules of Professional Conduct (MRPC) require a lawyer to “provide competent representation to a client,” meaning that the lawyer has “the legal knowledge, skill thoroughness, and preparation reasonably necessary for the representation.” MPRC 1.1. Comment 8 to Rule 1.1 also specifically addresses technology competence: “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” There is no way to go back to the times before we used the technology. Instead, we must understand the benefits and risks so we can best decide which technology to use when.

Empathy in response to the pandemic’s uneven effects

The pandemic also gave me a deep gratitude for all the family, friends, and colleagues who, as frontline and essential workers, did not have the luxury of working from home. For many of us lawyers, ensconced in comfortable quarters at home, it is easy to forget that many people never worked at home during the pandemic. Not once. While I could roll out of bed, start the coffee, and sit in front of my dual monitors to start the day, those individuals in our communities were getting ready for their day, commuting, and making sure that all the things we needed—medical care, police, public safety, groceries, essential goods, cleaning services, and so on—were there when we needed them. And they did it at risk to themselves and their loved ones, not knowing if or when they might bring home COVID.

I also developed an appreciation for all the things that parents with small children go through, juggling daycare and education with their jobs. Ordinarily, this is no small feat and parenting was made much more difficult with all that goes along with remote or hybrid learning. Our kids managed the technology, and generally did what they needed to, without constant supervision from us. That meant I could usually spend most of my time focused on work. I know that was not the case for the many parents who had children too young for school or to learn independently. That’s not to mention the numerous quarantines and isolations for close contact or exposure to COVID that parents with young children endured, or responding to symptoms that might or might not be COVID.

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The pandemic taught us all that no matter what we are dealing with in our lives, someone else is dealing with all those things in their own life. 

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The pandemic taught us all that no matter what we are dealing with in our lives, someone else is dealing with all those things in their own life. The divide between work and personal life was removed, and we saw or heard about what others were dealing with—struggles, challenges, and opportunities. I hope that has helped us all develop a deeper empathy for our fellow human beings.

Diversity, equity, and inclusion (DEI) should remain front and center

So, too, we should remember to continue the good DEI habits that have come out of the pandemic. There were, and still are, benefits to working hybrid or remote. In October 2020, Poonam Kumar wrote about how remote working can be seen as an equalizer in her article, “The Impact of the Pandemic on Women Lawyers,” in The Hennepin Lawyer. If you missed it, I recommend it. And if you read it before, I would recommend that you read it again. Kumar’s recommendations are what we should carry forward as we exit the pandemic. “For instance,” Kumar wrote, “leadership or management positions within organizations no longer require travel or in-person meetings and are excellent opportunities to explore at this time.” That holds true now, even if full-time remote work is ending. That is just one way we can include those who might have been excluded from opportunities in the old way of things.

We should, of course, always find ways to be more inclusive. That starts by understanding how lawyers with diverse backgrounds have different obligations and needs. But it also means making sure that hybrid work environments do not set back DEI efforts. Remote work has the possibility to create a divide between those who are in the office and those who are not. See Alexandra Samuel and Tara Robertson, “Don’t Let Hybrid Work Set Back Your DEI Efforts”. But being mindful of what policies are in place and how they might affect others can bridge that divide. That means looking closely at who is spending time at home or in the office, how hybrid work is arranged, and how work settings affect employee engagement and retention. See id. DEI considerations should be top of mind as we change old ways of working and adapt to the new ways of working.

Conclusion

I am not sure what the future holds for our work after COVID. But I doubt we will return to how things were. And that will be a good thing if it makes us more mindful of how we incorporate technology into our practice, understand and share in others’ feelings, and support continued efforts for DEI.

[1] For one example of someone more qualified than me providing actionable legal information in response to COVID, check out Sterling Miller’s “Ten Things: Essential Issues For In-House Counsel (2022 Edition),” from this past January on his blog Ten Things You Need to Know As In-House Counsel.  That article not only discusses covid-related issues but also provides links to other sites with helpful information.