Reopening of a small business activity after COVID-19. Photo: Shutterstock.com

Seventy-one percent of in-house counsel indicated they are concerned about the liabilities their companies face when bringing employees back to work during the new coronavirus pandemic, according to the COVID-19 Return to Work Survey published by Littler Mendelson on Tuesday.

"The wave of COVID-19 litigation has begun in haste and poses a real threat to employers, most of whom are already grappling with the economic fallout from this pandemic," Michael Lotito, shareholder and co-chairman of Littler's workplace policy institute in San Francisco, said in the report.

Alka Ramchandani-Raj, of counsel at Littler in Walnut Creek, California, said in an interview on Monday that she was not surprised that in-house counsel believe litigation and complaints against employers will arise once the pandemic is over.

"We don't really know what is going to come out from a liability standpoint from COVID-19," Ramchandani-Raj said. "Some cases may be brought with regards to safety violations. There have also been inquiries from plaintiffs attorneys on WARN Act requirements."

Of the in-house counsel surveyed, 68% believe there will be an uptick in leave of absence entitlements and 59% of in-house counsel surveyed believe there will be an uptick in unsafe-workplace-condition complaints.

Ramchandani-Raj also said employers with essential workers may see a rise in workers' compensation claims. She said for many states there is a presumption that if an employee becomes sick, then it is work-related.

The best defense for the variety of claims that may arise once the pandemic ends is to pay attention to the various orders coming from state and local government and comply with those orders if feasible.

"Ignorance is not bliss right now," Ramchandani-Raj said. "Employers should know what's out there."

"In the face of so much uncertainty, legislative safeguards and clear guidance from federal and state agencies are important in providing employers with sufficient confidence to reopen their workplaces—and to do so in compliance with the law," Lotito said in the report.

According to the report, 44% of the respondents anticipate bringing employees back to work in the next one to three months. Thirty-four percent of respondents anticipate bringing employees back within the next month.

"Even if the government gives employers the green light to bring employees back, they [state and local governments] are giving employers a lot of instructions. To come into compliance will take time," Ramchandani-Raj said.

Some of the regulations required for employers to open back up will include social distancing and keeping employees six feet apart at all times and to minimize locations in an office where employees are close together.

Of the number of professionals, 1,010 responded to the firm's survey. The respondents included 59% of human resource professionals, 31% of general counsel and in-house counsel, and 10% of C-suite executives. The question over litigation was only asked to in-house counsel.