@BryanRenbaum

Employers are likely to see an increase in Covid-19-related lawsuits as more and more people head back to work amid the lifting coronavirus-related restrictions, according to two Maryland-based employment attorneys.

“There is no doubt that employers will face workplace liability claims as they reopen during the coronavirus pandemic, and there are many laws and regulations under which these claims will arise, including matters like paid leave, workers’ compensation, workplace safety, and reasonable accommodations,” Melanie Glickson, Glickson Law Firm, told MarylandReporter.com in an email on Wednesday.

Residents and families of those who died in nursing homes during the pandemic are already hiring lawyers and now more businesses could find themselves a target as well.

“The legal system is in uncharted waters and there is simply no playbook by which to predict how the jurisprudence will develop and whether such suits will gain traction. Currently, there are no significant protections limiting liability for labor and employment claims related to the coronavirus. Employers are best served by taking good faith actions to protect the workforce and adopting and enforcing return-to-work policies and protocols suited to the specific needs of the business.”

Jennifer Berman, CEO of MZQ Consulting LLC and Senior Vice President of Compliance for Kelly Benefit Strategies, echoed similar sentiments.

“We are likely to see a waive of lawsuits against employers in the wake of COVID-19. There will be a whole new world of potential claims to be pursued.”

The Maryland Department of Labor on Tuesday sent out an email that said unemployment claimants who have been temporary laid off or furloughed due to COVID must return to work if requested to do so by their employer. Failure to comply with the department’s guidance may result in the delay or denial of benefits. Employers must report return to work offers to the department within 15 days or face a fine.

The guidance provides several exceptions under which employees may refuse work. They include: Unreasonable risk of exposure to COVID, being sick from COVID, caring for a family member who is sick from COVID, and caring for a child who is unable to go to school or daycare. The department said it will make a determination on each case after an interview with both the employer and the claimant.

On social media many people have said they are not yet ready to return to work. The Facebook page for The Baltimore Restaurant Relief Group is full of posts in which employees who had been temporarily laid off have cited childcare and safety concerns. Some even said they have been unable to reach anyone at the unemployment call centers as well as the number listed on the latest note from the state’s labor department. Others said they are going to lose their unemployment benefits while they wait for the state to interview them about why they can’t return to work.

Berman said the department’s requirement that employers report return to work offers “highlights a huge legal and moral dilemma.” Berman said the requirement presents employers with the following questions:

  •  If my employees are better off without an offer to return to work, should I not even offer? 
  • But, I need to document an offer to return to work to maintain eligibility to have my PPP loan forgiven…
  • If I make the offer do I have to tell unemployment?  (Answer, legally, yes)

Berman said the answers to those questions are somewhat unclear.

“Unfortunately, there are no great answers to these questions.  As a result, it becomes a case-by-case risk analysis—one more challenge for business owners to face.”

Sen. Brian Feldman (D-Montgomery), vice-chair of the Senate Finance Committee, which has jurisdiction over the Labor Department’s Division of Unemployment Insurance. Feldman said some of the guidance surrounding work exemptions is unclear.

“I think the biggest question raised here is if you think the work environment in your place of employment is unsafe and you think its risky to your health to go back to work. The release suggests that that may constitute good cause but that it is going to involve some interviews with the claimant and with the employer. I think that is really going to be a challenge in terms of that’s a big vague gray area.

“So, if a worker says that they don’t think their employer has put in place safety protocols and that type of thing-and the employer disagrees-it’s not clear to me exactly how the Department of Labor is going to resolve that dispute. If there is a disagreement can the worker be fired? I think that that is the one area that there suggests needs to be more clarity.”