Coronavirus: 4 Focus Areas for In-House Counsel
A lot has happened since last Friday. Kenya has not only confirmed its first coronavirus case but also, taken steep measures to contain the spread of the virus. The President of the Republic recommended remote work policies as one of the control measures. Globally, the coronavirus outbreak has caused fear, panic, and pandemonium and created an environment ripe for compliance breaches. As in-house counsel, be on the lookout and safeguard your organisation accordingly. How?
4 Focus Areas for In-House Counsel
1) Advice IT on Beefing up Security
Cyber fraudsters may be plotting to hit you with phishing emails or exploitative content on the coronavirus. For example, staff may receive emails requiring them to click external links to access services such as:-
- XYZ Ltd
- is working remotely today….. click this link to access the remote work policy
- Due to the Coronavirus, we will remit your salary by Mpesa please link here to update your Mpesa details in our system
In essence, expect fraudsters to take advantage of the prevailing situation to solicit personal or corporate information from employees for fraudulent purposes. Therefore, in conjunction with your IT department, you should sensitize employees on such schemes. Further, encourage employees to report suspicious email activity.
In addition to the above, the IT department should ensure monitor firewalls to identify and prevent unauthorised access attempts. Where remote working policies are in force, enforce acceptable use policies for computers and mobile devices. Matters to include in such policies include appropriate use of wifi, steps to take in case a system compromise is identified.
2) Regulatory Compliance
The coronavirus does not give you carte blanche to disregard the law. Regulatory bodies and law enforcement agencies have issued a stern warning against taking advantage of the situation for personal gain or otherwise. For example, on 13th March 2020, the Competition Authority cautioned retailers against hiking prices in light of the virus. Today (16th March 2020) the Authority took action against a leading retailer for engaging in price hikes. As in-house counsel, advise your business teams and leaders that the law must be followed irrespective of the coronavirus.
3) Support HR
The HR department is bound to get flooded with queries and concerns from employees. Whilst there is no black and white answer to all questions, efforts should be made to candidly address these concerns. From a legal perspective, have in mind that coronavirus is a health issue that touches on sensitive personal data of employees. The Kenya Data Protection Act has safeguards relating to the handling of sensitive personal data. Therefore, you must support HR in answering staff queries to ensure that privacy breaches do not occur. In addition to Privacy, provide guidance on areas that are not addressed in existing policies. One area of development includes updating leave policies to address emerging concerns such as time taken for self-quarantine or to recuperate from coronavirus.
4) Contractual Matters
Coronavirus has led to the closure/lockdown of borders, businesses, schools and social events. Business units now require the support of in-house lawyers in discerning the impact of the lockdowns on current or future contractual obligations. There are few value-adds that lawyers can provide at this time:-
- coordinate contractual review process across the organisation. One way to do this would be to develop an FAQ and administer it to business leads as a guide for responding to customer queries.
- review and advice on the enforceability of force majeure provisions. In addition, advice on the attendant notice periods.
- consider key provisions including termination for convenience, material adverse changes, warranties and representation, and covenants.
The foregoing focus areas are merely suggestive and may change depending on the size and complexity of your organisation. The important thing is that in-house counsel should be proactive and involved in defining workable solutions for their companies. Stay Safe.
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