Last summer, as the number of COVID-19 cases was spiraling, two U.S. senators introduced what was known as the “Safe to Work Act.”
Designed to protect businesses and other enterprises from what was seen as an explosion of “insubstantial” pandemic-related lawsuits brought by their employees and meant to be part of the stimulus package, the effort failed.
But the issue remains. And now Maryland, like many other states, is grappling with the question of just how much protection from pandemic-related lawsuits businesses need and deserve.
Several bills have been introduced in the Maryland General Assembly dealing with the subject. One, introduced by Sen. Christopher West, R-Baltimore County, would prevent any business that follows safety guidelines from being liable for customers who contract the virus while visiting the business.
Others, meanwhile, would protect employees. The Maryland Essential Workers Protection Act, for example, would require employers who use essential workers to provide additional benefits and protections throughout the pandemic, and it opens the door to penalties and compensatory damages if the businesses fail to comply.
Another proposal would presume that certain front-line employees, such as firefighters, who contract coronavirus have an occupational disease related to their work. That measure would open the door to compensation.
Supporters of the bills say they are needed.
“We’re asking our workers to go out and risk their lives, and at a minimum, we just need to make sure that we’re protecting them and their families,” said Ricarra Jones, political director of 1199 Service Employees International Union at a news conference announcing the essential workers law.
“This would be helpful to people who are out there risking their lives every day, potentially contracting the disease,” said Sen. Douglas Peters, D-Prince George’s, of the presumption bill he is sponsoring.
But business groups are not convinced.
“There are a number of ways that an employee already has as far as recourse if an employer is being negligent and that’s how they contracted coronavirus,” said Cailey Locklair, president of the Maryland Retailers Association. “For the most part, the majority of businesses are good actors. It doesn’t benefit a business to be reckless, to jeopardize the safety of not only their employees but their consumers.”
Her association is “very opposed” to the bills that have a presumption of essential workers contracting the coronavirus at work, Locklair said.
“The CDC is very clear about this – the incubation period is two weeks, so there is no way you can point to a business and say, ‘I got it there.’ ”
Federal and state occupational safety and health laws, meanwhile, already protect employees if they feel their work is too dangerous. “They can file complaints,” Locklair said.
Still, the Maryland Retailers Association is willing to consider portions of the Essential Workers Protection Act, such as coming up with emergency preparedness plans for businesses during the pandemic.
The current mix of state and local government orders, mandates and guidelines telling businesses how to operate is confusing for businesses, Locklair said
“You have executive orders, you have state orders, you have the CDC telling you something,” she said. “We’d love to abide by one set of guidelines or rules. But that doesn’t exist right now.”
Some legal experts say businesses already are well-protected from pandemic-related lawsuits by Maryland law.
Christine Walters, an authority on employment law and an independent consultant for FiveL Company, a Westminster business that provides employment law consulting to businesses, said employees already face two main hurdles if they hope to hold a business responsible for their coronavirus.
The first is proving the disease was contracted at work – the “causation” question. The second is a basic tenet of workers compensation that says an employee can waive his right to sue the employer if he accepts such compensation, something many employees choose as a quicker and easier path.
Pandemic-related employee lawsuits, Walters said, are a problem that can be reasonably prevented. “Proactive businesses are talking to their workers’ compensation carriers to implement practices that meet a reasonable standard of care, are usual and customary for their industry. They are attentive to and considering federal, state and local regulatory guidance.”
Sixteen states had passed some form of business immunity or protections from lawsuits by January, she said.
Michael Hayes, associate professor at the University of Baltimore School of Law, agreed that Maryland businesses already are well-protected from coronavirus-related lawsuits.
“Right now, there are no real protections for employees at all,” he said.
Asked whether more protections are needed, Hayes said, “Other states are doing more to help employees. That’s just the reality.
“Of course,” he added, “other states are doing less. Some other states have passed laws to protect enterprises. Maryland right now seems to be doing neither. Just leaving the law as it is, for good or ill.”