Berks County Bar Association The Berks Barrister Fall 2020 - 28

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New World Disorder
Continued from page 27
pretrial hearings, and guilty pleas. Such actions led to slowdowns,
as attorneys overcame the new learning curve while shouldering
the burden of additional responsibilities. Like many offices around
the country, the district attorney's and public defender's offices
had many employees working remotely for a majority of their
work weeks, which also reduced efficiency. The assistant district

Are We Risking Our
Livelihoods as Well
as Our Health?

The COVID-19 pandemic impacting the United States has
had an immediate effect on Berks County. The nation's death rate
from the reemergence of SARS, at the time of this article, is the
same as three fully-loaded Boeing 747s crashing per day, with no
survivors.1 One major problem leading to virus propagation is the
delay and recovery prior to mortality, leading to an unknowing
spread of the disease. We are living in a different world with a new
general and well-recognized hazard.
How will this pandemic impact our ability to practice
law? For law firms, OSHA mandates that each worker have
"employment and a place of employment, which are free from
recognized hazards that are causing or are likely to cause
death or serious physical harm." 2 This is not a law we would
usually consider a firm in risk of criminally violating. However,
complying with Centers for Disease Control and Pennsylvania
Department of Health (DOH) guidelines with respect to the
reemergence of SARS is a reasonable counterbalance to an
accusation of criminally violating OSHA guidelines. These are the
basic requirements:
* Universal use of facemasks or face coverings;
* Stagger work start and stop times when practicable to
prevent individuals from gathering in large groups;
* Providing significant space between people during work
activities;
* Abiding by and firm enforcement of state required
quarantines for all individuals;
Chan-Yeung, Moira; Xu, Rui-Heng (November 2003). "SARS: epidemiology".
Respirology. 8 (s1): S9-S14, www.emro.who.int. Retrieved 15 April 2020.
2
Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1).
3
See National Football League.
1

28 | Berks Barrister

attorneys and assistant public defenders were miles and miles
from the files and access to their materials wasn't quite as easy.
It would be a disservice to claim the criminal court has learned
a new meaning of "good things come to those who wait," as the
furloughs and reduced court times became the monkey wrench in
a once fine-tuned machine.

* Using virtual attendance, wherever reasonably possible; and,
* Providing workers notice of all said protocols.
Even while following reasonable standards of care one could be
accused of being in violation of the OSHA standards3; however,
maintaining them keeps the firm hopefully clear of federal
criminal enforcement.4
Will this pandemic jeopardize my future ability to practice
law? Conviction of a crime as a member of the Bar of the
Commonwealth of Pennsylvania is clearly a basis for discipline
by the Disciplinary Board.5 However, from a public policy
perspective, if an employee is infected and an OSHA case follows,
this isn't a simple crime for the Disciplinary Board to review.
We're dealing with an attorney who endangered the lives of others
and did so concurrent with the professional practice of law, in a
law firm. It is difficult to think the Supreme Court would not see
justification in applying serious repercussions to an attorney who
knowingly violated OSHA guidelines by failing to wear a mask
in the office or failing to strictly enforce the Commonwealth's
quarantine mandates.
Are we risking our livelihoods as lawyers? During a recent
CLE in Berks County, a question was presented: "How does one
(actually) prove one contracted COVID-19 in the workplace?"
How would OSHA look at this at trial? The clearest answer is that
a finder of fact would apply common sense. Think about the last
time you were sick; there is a good chance you know where you
got it, and you're certain, even if somehow epidemiologically you're
wrong. How would your jury go about applying the facts when
they found out masks weren't mandated at the office? When the
quarantined were allowed to keep working? When your partner's
secretary's husband was hospitalized, resulting in an OSHA
complaint? Let's face it, it's easier to follow CDC guidelines at
the office than take the risk. It's a time of crisis, so let's use that to
justify what every frequent flier knows: put the mask on ourselves
first and then on those around us.
While the current politics of the federal government show disfavor towards enforcement of workplace safety, the November Election has the potential to change
the enforcement posture of administrative agencies well inside any statute of limitations period.
5
PA ST DISC Rule 203.
4

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Berks County Bar Association The Berks Barrister Fall 2020

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