Employers are likely to see an increase in COVID-19-related lawsuits as more and more people head back to work amid the lifting of coronavirus-related restrictions.

1. © 2020 Lerch, Early & Brewer
Presented by:
Employer Liability &
COVID-19
Marc Engel, Julie Reddig & Michael Neary
Employment Attorneys
Lerch, Early & Brewer
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Tuesday, September 22, 2020

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Possible Discrimination Claims
Employer Liability and COVID-19
Discrimination claims challenging the reason why an employee
was selected for termination, furlough or some other type of
employment action (such as a reduction in pay).
1. May be based upon age.
2. May be based upon actual or perceived disability.
3. May be based upon race.
4. May be based upon ethnicity.
5. May, in certain jurisdictions, be based upon family responsibilities.

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Possible Discrimination Claims CONTINUED
Employer Liability and COVID-19
Discrimination claims may be based upon decisions made by
employers regarding who is required to return to work.
1. May be based upon age.
2. May be based upon disability.
3. May be based upon race.
4. May be based upon ethnicity.
5. May, in certain jurisdictions, be based upon family responsibilities.

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Possible Contract Claims
Employer Liability and COVID-19
• Review employment agreements (if any).
• Comply with collective bargaining agreements.
• Comply with offer letters and handbooks.

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Possible Wrongful Termination Claims
Employer Liability and COVID-19
• Termination for refusing to return to work.
• Termination for complaints about a lack of personnel
protective equipment (“PPE”).
• Termination for complaining about inadequacy of PPE.
• Termination for complaints about co-workers reporting to
work with COVID-19 symptoms.

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Workplace Safety Claims
Employer Liability and COVID-19
• Claims brought under state and federal safety laws.
• Claims based upon violation of government established
protocols.
• OSHA regulations provide employees with the right, in
certain situations, to refuse to return to work if there is a
hazardous condition at the workplace that exposes
employees to a real threat of death or serious injury.

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Claims Based Upon Federal WARN and
State “Mini-WARN” Laws
Employer Liability and COVID-19
• Federal WARN Act
– Applies to employers with 100 or more employees
– Requires, in certain circumstances, that employers subject to the
Act provide at least 60 days’ notice before a mass layoff or closing a
plant.
– Insufficient notice can result in damages for back pay and penalties.
– Unclear whether the unforeseen business circumstances exception
to federal WARN applies to COVID-19 situations.

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Employer Liability and COVID-19
Claims Based Upon Federal WARN and
State “Mini-WARN” Laws CONTINUED
• [NEW] Maryland “Mini-WARN” statute scheduled to
take effect October 1, 2020.
• Applies to employers operating an industrial, commercial, or business enterprise in Maryland
that employ at least 50 employees. The law does not apply to employers that have been
doing business in Maryland for less than one year.
• The act applies to “reductions in operations” which is defined as (A) the relocation of a part
of an employer’s operations from one workplace to another existing or proposed site or (B)
the shutdown of either a workplace or a portion of the operations of a workplace that
reduces the number of employees by the greater of at least 25 percent or at least 15
employees over any 3-month period.
• 60-day notice period.
• Significant penalties for violations.
• Unlike federal WARN, the new Maryland law does not have exceptions for “unforeseeable
business circumstances” or “natural disasters”

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Retaliation and Whistleblower Claims
Employer Liability and COVID-19
• Termination as a result of complaining about workplace
safety issues.
• Termination as a result of employees taking protected
leave.

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Claims Based Upon Disclosure of Confidential
Information
Employer Liability and COVID-19
• ADA requires that medical information about employees be
stored separately.
• Possible HIPAA claims.

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Best Practices
Employer Liability and COVID-19
• Update leave policies.
• Establish a written remote work plan.
• Determine essential and other employees that “need” to return to work.
• Review and update accommodation policies.
• Train managers on managing remote work employees and employees
returning to work.
• Document performance issues.
• Establish criteria for layoffs, furloughs and other staffing decisions.
• Centralize hiring and termination decisions.
• Confirm existence of applicable employment and other insurances.

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Employer Liability & COVID-19
Employer Liability and COVID-19
Liability arising out of employer’s:
• Refusal to provide reasonable accommodation;
• Failure to provide paid leave for COVID-19 related
reasons; and
• Retaliation

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Accommodations related to COVID-19
Employer Liability and COVID-19
• ADA requires reasonable accommodations that do not
impose an undue hardship to the employer
• Disability = mental or physical impairment that substantially
limits a major life activity
– Many of the conditions that place an employee at high-risk for
contracting COVID-19
– Pre-existing mental health conditions exacerbated by COVID-19

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Employer Liability and COVID-19
• Request for continued
remote work
• Request for changes to
safety/PPE rules
Accommodations related to COVID-19

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Employer Liability and COVID-19
• To avoid claims of failure to accommodate:
– Engage in the interactive process
– Perform an individualized inquiry
– What else can the employer do to allow the employee perform the
essential functions of the position without undue hardship? See
Job Accommodation Network
– Temporary accommodation
– Leave as an accommodation
Accommodations related to COVID-19

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Employer Liability and COVID-19
• State and Local Sick and Safe Leave:
– The Maryland Healthy Working Families Act
– The Montgomery County Earned Sick and Safe
Leave Law
• The Families First Coronavirus Response Act
• The Federal Medical Leave Act (FMLA)
• Additional Employer provided leave – PTO,
long-term medical leave, etc.
Employee Leave

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Employee Leave
Leave for:
• Employee with COVID-19 or symptoms = FFCRA (EPSLA if seeking
medical diagnosis and unable to work) , “old” FMLA (if serious health
condition), Paid Sick and Safe Leave, PTO
• Employee with COVID-19 exposure = FFCRA (EPSLA advised by a health
care provider or subject to isolation order related to COVID-19); Paid
Sick and Safe Leave, PTO
• Employee caring for COVID-19 positive Family Member = FFCRA (EPSLA
if told by healthcare provider or subject to a federal, state, or local
quarantine order); FMLA if COVID is serious health condition
• Employee caring for child due to School/Childcare Closure = FFCRA
(EPSLA + EFMLEA), Possibly paid sick leave, PTO
Employer Liability and COVID-19

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Retaliation
Employer Liability and COVID-19
• Adverse action following
request for leave or
accommodation

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Resources
Employer Liability and COVID-19
Leave as Accommodation under ADA
• EEOC’s What you should know about COVID-19 and…

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Resources
Employer Liability and COVID-19
Families First Coronavirus Response Act
• FFCRA Poster
• EEOC’s Q&A on FFCRA
• Family Medical Leave Act – COVID-19… and the Family
Medical Leave Act Questions and Answers
• State and Local Paid Leave Laws

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FLSA and compensation issues in a COVID world
Employer Liability and COVID-19
• Leave bank draw down
• Leave without pay
• Pay during quarantine
• Volunteers
• Pay rate change for telework
• Costs of telework
• Hours worked during telework
• When does the day start and end?

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Workers’ Compensation
Employer Liability and COVID-19
• Maryland
– Occupational disease
– Accidental injury
• Virginia
– Occupational disease
– Accidental injury
• DC
– Occupational disease
– Accidental injury

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Thank you!

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Employer Liability and COVID-19
About the Presenter
Marc Engel is an employment attorney committed to proactively helping
for profit and nonprofit employers minimize the risk of employment
claims; establish sound and effective employment documents and
policies, and resolve local, state, and federal workplace disputes
throughout the Washington, DC area.
Marc R. Engel
T 301-657-0184
F 301-347-1798
mrengel@lerchearly.com
Employment Attorney
Lerch, Early & Brewer

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Employer Liability and COVID-19
About the Presenter
Employment attorney Julie Reddig helps employers build and maintain
productive workplaces by navigating the many federal, state, and local
laws protecting employees in the workforce. She counsels management
on avoiding and defending against employment claims before
administrative agencies and local, state, and federal courts in Maryland
and the District of Columbia.
Julie A. Reddig
T 301-961-6099
F 301-347-1788
jareddig@lerchearly.com
Employment & Labor Attorney
Lerch, Early & Brewer

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Employer Liability and COVID-19
About the Presenter
Michael Neary is an employment attorney and commercial litigator who
works with businesses to prevent and defend against employee claims. He
also litigates commercial disputes such as real estate controversies,
business fraud, corporate and partnership dissolutions, and commercial
contract claims.
Michael J. Neary
T 301-657-0740
F 301-347-1790
mjneary@lerchearly.com
Employment & Litigation Attorney
Lerch, Early & Brewer