Business Law Blog

Unprecedented. Have you heard that word a lot in the past 4-5 months? Not surprisingly, the word ‘unprecedented’ is the default word to describe society’s reaction to COVID-19, its effects on our healthcare systems, our behaviours, our compliance (or not) with government directives and guidelines, and the impact to our economy and economic well-being. This is, in our lifetimes, the most rapid response to a threat on a global level. How millions of people, living and working in jurisdictions with different political structures have all responded is a fascinating study. It is certainly trite to say that considerable post-pandemic analysis, whenever ‘post’ is, will be undertaken.

Unprecedented is also a difficult word for a lawyer to rely on when advising clients. It is also difficult for boards of directors who operate on the basis of precedential guidance. Precedent that derives from their duties at law. Every experienced director will be aware of their responsibilities and how a failure to meet those responsibilities has been interpreted and shaped by court decisions.

So here we are. We have written previously about governance in the time of COVID-19. Since that post four months ago, organizations have shifted in their thinking from reaction, principally focused on the health and safety of employees and customers, and the protection of the financial well-being of the business and business continuity, to pro-active thinking including a ‘re-imagined future.’ Organizations took active steps to address their immediate requirements and, very quickly in many cases, pivoted where necessary to address challenges such as supply chains that were suddenly constrained, or demand that had ceased. In some cases organizations re-deployed capital and talent to assist in the common effort to address the health crises domestically and internationally, and replaced in part or entirely, their intended production of goods.

Even four months ago, we believed that Boards should be prepared to evaluate opportunities as well as risk and threat. We are there now. Boards are now turning to adapting to a ‘new normal’ that may last some time, and to longer-term and permanent changes in the way business is conducted. Clearly, different industries are experiencing vastly different outcomes in the immediate aftermath of the WHO’s declaration of a global pandemic. Companies operating in tourism and travel have seen devastating declines and demand will take some time to return. On the other end of the spectrum, companies operating in, and with solutions for, virtual meetings and service delivery (telemedicine), e-commerce facilitators, entertainment streaming have found their revenues increase. There is no one-size-fits-all for Boards either. Depending on the impact to an organization, positive or negative, Boards are now doing three things (i) oversight of the execution of staged re-opening/re-integration; (ii) considering impact on strategy; and (iii) looking to the future. A re-imagined future of the lessons from the pandemic crisis applied to a post-pandemic world.

At the management level, organizational leaders have to re-invent themselves. Leading by “Zoom” is not the same as ‘management by walking around’. For some organizations that were already set up in multiple jurisdictions, and with a comfort level using telecommuting and virtual meetings, there has been no discernable change, other than that the rest of the world just caught up. For organizations, and for leaders of organizations, where that is not an innate skill, leaders are on a steep learning curve. EQ is more important than ever for leaders. The ability to distill significant amounts of information is important. Making sure that a leader surrounds themselves with unfiltered information and maintains an open dialogue with team members who can be critical and contradictory is important.

This is an unprecedented time. The tools in the toolkit that were deployed so successfully in the period just prior to the pandemic, during one of the most robust economies in the post-war era, cannot be the go-to for emerging from the pandemic. Agile thinking, open and inclusive leadership, focusing on the purpose and values of the organization and communicating, and thinking and planning for the future, are all going to be the hallmarks of successful leadership during this unprecedented time. For boards, it is time to step back a bit from the COVID-19 response frequency to give lead executive officers the opportunity to re-confirm objectives, plan and execute.