Managing COVID-19 Employment Practice-Related Exposure

We found this article, made available by Insurance Journal, most informative. The original content can be accessed by clicking here.

This post is part of a series sponsored by The Hanover Insurance Group.

As the pandemic continues, we’re seeing new COVID-19-related regulations, restrictions and advisories issued and adjusted by federal, state, and local officials on a regular basis. Each jurisdiction can create and enforce its own laws, leaving many employers faced with varying—and at times conflicting—orders and guidance. This creates a decision point for employers. Which should they follow? And, how can that decision impact their business?

From decisions about workplace safety, such as personal protective equipment, visitor policies and vaccine requirements, to handling work-from-home, family, and medical leave requests, there are a lot of business issues to sort through and a great deal of exposure, which could leave them open to the threat of an employment-related lawsuit. As trusted advisers to these businesses, independent agents can help guide their clients through the maze of regulations and guidance, sharing thoughtful risk management practices and key coverages to evaluate.

Growing threat of litigation

More than 2,000 COVID-related employment lawsuits have been filed already, and the number is expected to grow as businesses respond to ever-evolving circumstances. Business leaders can prepare by educating themselves and seeking out resources and guidance to navigate health, safety, and economic issues. Whether it’s subsequent waves, a change of jurisdictional guidance and/or regulations, or the availability of a vaccine, forward -thinking leaders will be well prepared to understand the options and their impact and make informed, proactive decisions.

With the pandemic, employers should be especially mindful of the following types of employment practice claims:

  • Workplace safety: Allegations of failure to provide a safe working environment
  • Discrimination: Allegations of age and disability bias in employment termination
  • Wage and hour: Allegations of failure to pay non-exempt employees for remote work or time spent completing employer-mandated COVID-19-realted health and safety activities, such as daily screenings
  • Retaliation: Allegations of retribution for complaints about workplace safety or use of medical leave

Thoughtful risk management

With questions like ‘can employees be required to get a COVID-19 vaccine?’, ‘how do we manage continued work-from-home requests?’, ‘what accommodations should be made for employees with disabilities?’, and ‘how do we address employees’ workplace safety concerns?’, it can be difficult for businesses to know where to start. Independent agents can play an important role in helping their clients think critically about their risks and take proactive steps. Similarly, top insurance carriers understand this, and have acted to provide employers with guidance and services that can help them minimize the risk of litigation.

For example, The Hanover has negotiated agreements with leading labor and employment practices firms to offer a range of services to Hanover policyholders that can help reduce the risk of employment practice lawsuits related to COVID-19. These value-added services are offered to policyholders no cost, or at a significant discount, such as:

Holistic insurance solution

  • COVID-19 return-to-work guide, including a robust testing and screening guide, sample policy language and detailed guidance on workplace safety, disability accommodations, and more
  • Family First Coronavirus Response Act compliance assistance, including sample policies, template forms, a flowchart for managing requests and attorney consultation
  • COVID-19 online training module for employees on personal hygiene practices and more
  • A COVID-19 customer information center with key information from the CDC, EEOPC, and state-specific resources

Beyond risk management, agents can help their clients by partnering with insurance carriers that offer employment practices liability insurance that can be tailored to the needs of each business.

As businesses wonder if they have adequate insurance protection, agents can help them understand their coverage and identify possible risk areas by considering these three important factors:

  1. Definitions: As agents know, not all definitions are created equal. Carefully assess definitions of wrongful acts to ensure a business’s unique risks are covered.
  2. Who to cover: Ensure coverage applies to the acts of all individuals who work at the organization. For example, does the business use contractors?
  3. Key coverage provisions: These should include punitive damages where insurable, and coverage for Equal Employment Opportunity Commission or state equivalent proceedings.

As the COVID-19 pandemic continues to evolve, employers face increasing risks from employment-related lawsuits. Fortunately, agents can play an important role in guiding their business clients to risk management practices and coverages that help best protect their operations, their interests, and their employees.

Disruption in the Marketplace

This post utilized content from Property Casualty 360’s Heather Turner & PRNewswire.

On January 4th, 2021 PRNewswire announced Philadelphia Insurance Companies (PHLY) acquisition of the Staffing Insurance Business offered by Worldwide Specialty Programs, Inc. The transaction closed on December 31, 2020 complimenting PHLY’s broad suite of specialty services. PHLY markets and underwrites commercial property/casualty & professional liability insurance products. PHLY has an “A++” (Superior) rating by AM Best Company.

We anticipated the post-acquisition news being focused on PHLY’s delivery of industry-specific services to the temporary staffing space. Similarly, we are committed to a different industry niche, the Professional Employer Organization (PEO). We remain hopeful that PHLY will continue to support PEO, just as World-Wide has done for many years.

Entering the 2nd Quarter of 2021, uncertainty has become part of our new normal. In a recent article, Property Casualty 360 discussed fluctuation within the marketplace (4th Quarter 2020 – 1st Quarter 2021). Pre-COVID validated the firming of the marketplace. The initial impact increased underwriting scrutiny, rate increases, higher retentions, jurisdictional scrutiny and capacity reduction. As a result of COVID-19 related case uncertainty, higher than normal judgements, and developing CAT losses, there has been a continual hardening of the market. We expect rate increases, lowering capacity, limiting or transferring risk, and insurers scrutinization of risk profiles.

In conclusion, industry and marketplace changes or shifts have always been and will continue to be.  As the industry constricts, options, terms and conditions tend to constrict with it.  Your upcoming casualty lines renewal may look different, and we highly recommend staying out in front of it.

With that being said, contact Libertate Insurance Services for all your PEO-related insurance needs by emailing us here.

COVID-19 Vaccine Workplace Planning

Employers can play a key role in COVID-19 vaccine distribution and should prepare for when vaccine access reaches the general public. Educating employees on ways to avoid COVID-19 vaccine scams and helping to build confidence in the safety and effectiveness of the vaccine are important elements to a successful plan.

While vaccination details are getting worked out, here are three ways to avoid COVID-19 vaccine scams:

1.) You can’t pay to put your name on a list to get the vaccine. That’s a scam.
2.) You can’t pay to get early access to the vaccine. That’s a scam.
3.) Nobody legit will call about the vaccine and ask for your Social Security, bank account, or credit card number. That’s a scam.

Ignore any vaccine offers that ask for personal or financial information.
Learn more at ftc.gov/coronavirus/scams consumerresources.org/beware-coronavirus-scams

Building confidence in COVID-19 vaccines is equally important to getting us back to enjoying safe and productive workplaces. Here are a few things any organization can do to help build employee confidence in the vaccine.

·      Start at the top; encourage leaders and managers within your organization to champion the vaccine.

·      Talk about it. Provide an environment where employees can ask questions and discuss concerns openly in a constructive manner.

·      Provide information about safety, side effects, benefits, development and herd immunity through multiple channels which are both trusted and familiar to employees.

·      Celebrate the act of receiving the vaccine. Make employees feel proud about getting vaccinated and doing their part.

Click below to download a thoughtful COVID-19 Vaccine Workplace Planning Checklist developed by Zywave.

Employees getting vaccinated across all sectors of industry and business can be a driving force for a safe return to work for all Americans.

Managing COVID-19 Vaccine Policies

THIS ARTICLE IS BEING REPOSTED BY LIBERTATE INSURANCES JAMES BUSCARINI. THE ORIGINAL CONTENT WAS WRITTEN IN THE FEBRUARY 2021 EDITION OF RISK MANAGEMENT MAGAZINE. ARTICLE WRITTEN BY JODY MCLEOD, ESQUIRE AND GARY PEARCE

As COVID-19 vaccines become more available and companies return to the office, employers may want to protect their workforce by mandating vaccinations. However, it is essential that they keep in mind certain risks and how to mitigate them, including the legal limits of what they can ask of employees.

When approaching mandatory vaccinations for workers, the legal rules are reasonably established. Employers can mandate vaccinations as long as they have processes to deal with exceptions. The key exceptions concern medical disabilities covered by the Americans with Disabilities Act (ADA), and bona fide religious objections covered by Title VII of the Civil Rights Act of 1964. Because a vaccination is not a medical examination, it does not inherently trigger certain aspects of the ADA.  But beware of violating ADA obligations in the course of asking pre-screening questions or securing proof of vaccinations. Unvaccinated employees—particularly those who refuse or are unable to take a vaccine for medical or religious reasons—may be excluded from the workplace if they pose a direct threat, subject to ADA and Title VII ­obligations to pursue a reasonable accommodation. The ADA accommodation standard is somewhat more favorable to the employee than the Title VII standard. Determining whether an unvaccinated employee poses a direct threat requires a fact-specific determination, considering the duration of risk, the nature and severity of potential harm, and the likelihood and imminence of potential harm.

Excluding an employee from a workplace because they pose a direct threat does not automatically mean termination is justified. The employer first needs to determine whether there is a feasible alternative arrangement that would not impose undue hardship, such as remote work. There remains a general duty under the federal Occupational Safety and Health Act (OSHA) to provide a workplace free from serious recognized hazards, and COVID-19 exposure will typically qualify. Of course, organizations that expose the general public to COVID-19 risk being sued.

If a company imposes a vaccination mandate, it must consistently administer exception processes regarding reasonable medical accommodations and religious objections.  It will need to understand what constitutes business necessity, and must be able to identify reasonable accommodations on a fact-specific, individualized basis. The company will need to decide whether to assume the risks and obligations arising from self-administering vaccinations, or instead depend on collecting evidence of third-party administration. Lastly, it will need to minimize the prevalence of medical inquiries—including medical details unexpectedly proffered by the employee—and preserve the confidentiality of any protected information that may thereby be received.

Other potential issues include whether there is a union contract that the company must consider, or whether any state or local laws forbid mandatory vaccination policies.  

Risks of Vaccination Mandates

If an employer requires vaccinations, it must administer the mandate consistently and consider whether the additional risk is justified. If the employer imposes the mandate for only certain categories (e.g., for customer-facing staff but not home-based workers), it will need a rational basis for its determinations. Also, a mandate could bring any adverse reactions into the realm of compensability for workers compensation, and time spent receiving a mandatory vaccine is most likely compensable for purposes of wage and hour compliance. Data privacy and retention of medical records also need to be considered in the record-keeping process as the relevant regulations and laws are quite demanding. If the company provides financial incentives to encourage compliance, income may need to be reported and taxes owed as well.

Changing and Varying Rules

It was not until December 2020 that the Equal Employment Opportunity Commission issued substantial additional guidance regarding COVID-19 obligations under prominent employment laws. As of this writing, OSHA has yet to issue any rules specific to COVID-19, but the Biden administration is expected to issue a broad rule in the coming months. States and municipalities issue executive orders and ordinances at a pace that only specialists can keep up with. Even if all the written rules are known, there is no assurance that they will be administered in alignment with what governed parties might expect. “Guidance” may become a de-facto obligation.

For all these reasons, companies cannot base their protection and recovery program solely on compliance with current legal requirements. Nor can a static “one and done” determination be sufficient. In light of all these issues, duties and uncertainties, companies should determine whether a vaccine mandate is an effective use of their administrative resources.

Business Expectations

Requiring vaccinations does not mean employers can forego the rest of their COVID-19 management protocol. Employers need to keep in mind that there is no proof that vaccinated people cannot transmit the virus to others, the vaccination seems likely to be less than 100% effective, and some people either will be unable to get the vaccine or at least will not yet have received it. Worry about a new pandemic episode will persist for years.

Many employees likely regard safety as the highest organizational priority and will look to their employer to provide reliable information about COVID-19 risk management. Failure by the organization to respect these new expectations could trigger negative social media reactions, unwanted attention from plaintiffs’ attorneys, and difficulty attracting and retaining valuable talent. While this may be a threat to some managers, it is an unprecedented opportunity to strengthen the bond of trust between employee and employer. 

As a practical matter, legal regulations tend to react to changing circumstances.  This makes it likely that any rescinding of temporary standards will occur in a somewhat tardy fashion. To date, the volume of litigation related to COVID-19 has been less than feared. However, do not take too much comfort in this. Courts have been shut down, causal connections are likely to be better understood as experience accumulates, and plaintiffs’ attorneys may surmise that juries will be more sympathetic after the worst of the crisis has passed. 

Employees Who Refuse

Surveys show that a significant portion of the population would choose not to take a COVID-19 vaccine. Some may eventually be persuaded, while others have deeper objections. Some may be uncomfortable as long as deployment is under emergency use authorizations. This unease reinforces the need to be collaborative in pandemic management and transition planning, and to communicate the reasoning behind critical decisions or policies.

The entire workforce will never agree on how best to emerge from the pandemic. Although communication is important and stakeholder feedback is necessary, securing unanimity is unrealistic. On the other hand, if a significant number of workers refuse to accept a vaccine, even in the face of an employer mandate, is the organization prepared to redeploy or replace these workers?

There is no risk-free path to a post-COVID environment. Employers must continuously assess conditions and be prepared to act promptly despite incomplete information, changing circumstances and inherent uncertainties.

Regions Bank Treasury Management sends out information on Emerging COVID-19 Scams

Be aware of Emerging Covid-19 Scams
Author credit: Jeffrey Taylor of Regions Treasury Management Products and Services

Several government agencies have issued a bulletin warning of a new type of COVID-19 scam. Along with the previously reported scams involving personal protective equipment (PPE), COVID-19 testing, and economic stimulus payments, fraudsters are now leveraging the availability of the COVID-19 vaccine. According to the bulletin, victims are being coerced to make an out-of-pocket payment for the vaccine and provide personally identifiable information with a false promise to move their name up on the list of vaccine recipients.

The FBI warns of the following potential indicators of fraudulent activity:

  • Advertisements or offers for early access to the vaccine upon payment of a deposit or fee
  • Requests asking for out-of-pocket payment to obtain the vaccine or be added to the COVID-19 vaccine waiting list
  • Offers to provide additional medical testing or procedures when obtaining the vaccine
  • Marketers offering to sell and/or ship doses of a vaccine, domestically or internationally, in exchange for payment of a deposit or fee
  • Unsolicited emails, telephone calls, or personal contact from someone claiming to be from a medical office, insurance company or COVID-19 vaccine center requesting personal and/or medical information to determine eligibility to participate in clinical vaccine trials or obtain the vaccine
  • Claims of FDA approval for a vaccine that cannot be verified
  • Advertisements for vaccines through social media platforms, email, telephone calls, websites or unsolicited/unknown sources
  • Unsolicited emails, telephone calls, or personal contact from someone claiming to be a government official requiring you to receive a COVID-19 vaccine


Tips to avoid COVID-19 vaccine-related fraud:

  • Consult your state’s health department website for up-to-date information about authorized vaccine distribution channels
  • Check the FDA’s website (fda.gov) for current information about vaccine emergency use authorizations
  • Consult your primary care physician before undergoing any vaccination
  • Don’t share your personal or health information with anyone other than known and trusted medical professionals
  • Check your medical bills and insurance explanation of benefits (EOBs) for any suspicious claims and promptly report such information to your health insurance provider
  • Follow guidance from the CDC and other trusted medical professionals


General techniques for online/cyber fraud prevention:

  • Verify the spelling of web addresses, websites, and email addresses that look trustworthy but may be imitations of legitimate websites
  • Ensure operating systems and applications are updated to the most current versions
  • Update anti-malware and anti-virus software and conduct regular network scans
  • Do not enable macros on documents downloaded from an email unless necessary and only after ensuring the file is not malicious
  • Do not communicate with or open emails, attachments, or links from unknown individuals
  • Never provide personal information of any sort via email. Be aware that many emails requesting your personal information may appear to be legitimate
  • Use strong two-factor authentication, using biometrics, hardware tokens, or authentication apps
  • Disable or remove unnecessary software applications

If you believe you are a victim of a COVID-19 scam, please call Regions Client Services immediately at 1-800-787-3905, and report it to the FBI at www.ic3.gov; wwwtips.fbi.gov; or 1-800-CALL-FBI.

Want more information, or have questions?
For more helpful practices regarding fraud prevention, please visit regions.com/stopfraud and www.regions.com/fraud-prevention.

SBA Issues New PPP Update

On January 6, 2021, the SBA (Small Business Administration) issued guidance on PPP (Paycheck Protection Program) by way of 2 interim final rules (IFR). The SBA will use the consolidated guidance of PP1 and these 2 IFRs to apply to PPP2. Withum, tax and assurance advisors, has put together a summary of the guidance to help us understand. Check out the full article here.

The biggest take-away for me is that borrowers under PPP1 are eligible for loans under PPP2; see article above for eligibility details of visit that SBA website. If you are interested in applying for the second round , the SBA has provided a list of Participating Lenders. Round 2 will be handled similarly through private lenders for management of the loans as well as the forgiveness application process. If you currently have a banking relationship contact your representative for guidance, as I learned with PPP1, each institution handles the program processing differently.

For more detail on the interim rulings you can check out the SBA webpage for PPP here.

Welcome to 2021, I will say it was nice to see that a second round of assistance is being offered up for small business. These days we always need to remember to look for the silver lining, be thankful for what we have, and be strategic in planning for our needs.

Reminders for you New Year’s Celebrations

Yet another post about Covid-19 safety, but this is our new normal so here we go! With the close of 2020 and all of its wonderful tidings (pun-intended), how do we safely celebrate the Hope of the New Year without bringing additional risk of Covid-19? The CDC has some pointers, check out this link for their article on “Holiday Celebrations and Small Gatherings.”

In Summary

If possible stay within your Risk Pod! Your Risk Pod are those that have been part of your pandemic social group and have been taking measures to reduce the spread of the virus. People that have not been a continued part of your Risk Pod add different levels of risk for exposure.

Covid-19 is mostly spread through respiratory droplets through talking, coughing or sneezing. Find out how people have been feeling before you open your home; don’t be afraid to monitor for fevers before entry.

This virus is also known to be of spread concern through contaminated surfaces and then contact made via nose, mouth or eyes. Keep cleaning supplies nearby and use them regularly.

If your celebration is a must try and schedule for an outdoor function where people can practice social distancing. Make sure ample access for hand washing is available.

Back in May of 2020 the R Naught or reproduction number (R0) of Covid-19 was between 2 and 3 for the United States meaning for each 1 person infected the virus, on average, can be spread to 2 or 3 additional people. As of December 7th the United States was reporting R0 between 1 and 1.25. We saw spikes in new cases in November. For more Covid-19 tracker information check out Covid19-projections. There is a great amount of machine learning visuals and information on the virus here.

Whatever your celebratory activities are to ring in 2021, we at Libertate Insurance hope you Have Fun and Stay Safe! Don’t kiss strangers at the Drop of the Ball! Keep your Mask On!

COVID-19 Relief Bill

Our friends at NAPEO are always keeping us up to date with pertinent information impacting PEOs and Small Businesses. They released the following yesterday related to the COVID-19 Relief Bill.

COVID-19 Relief Bill: What It Means for PEOs & Small Business

Yesterday, the House passed an omnibus spending bill that included $1.4 trillion to fund the federal government and $900 billion of additional COVID relief by a vote of 399-53. The Senate then passed the legislation by a vote of 92-6. The bill now heads to the White House, where President Trump is expected to sign it.

Tax Provisions

The omnibus spending bill – which is almost 5,600 pages long – contained many tax provisions that impact PEOs. Randy Hardock and Courtney Zinter of Davis & Harman (NAPEO’s outside tax counsel) have prepared a document containing the details of these provisions and how they apply to PEOs.

Specific tax provisions of interest to PEOs include:

  • Paid Sick and Family Leave Credits
    • Extends the paid sick and family leave credits against employment taxes from the Families First Coronavirus Response Act (FFCRA) for three additional months to March 31, 2021.
    • The bill does not extend the FFCRA’s mandate to provide paid sick leave or paid family and medical leave beyond December 31, 2020.
  • Changes to the Employee Retention Tax Credit (ERTC)
    • Repeals the provision denying the ERTC to employers receiving a PPP loan. Instead, mechanisms would be created to prevent the same wages from being used for both PPP loan forgiveness and the ERTC.
    • Extends the ERTC to apply to wages paid before July 1, 2021 (instead of January 1, 2021).
    • Increases the credit percentage from 50 percent to 70 percent of applicable wages.
    • Increases the per-employee limitation on applicable wages from $10,000 total to $10,000 per calendar quarter. In combination with the increased credit percentage, this would increase the maximum credit per employee from $5,000 to $7,000 per quarter (up to $14,000 for the first two quarters in 2021).
    • The following language was added to the ERTC provisions that specifically addresses PEOs: Any forms, instructions, regulations, or guidance described in paragraph (2) shall require the customer to be responsible for the accounting of the credit and for any liability for improperly claimed credits and shall require the certified professional employer organization or other third-party payor to accurately report such tax credits based on the information provided by the customer. [Emphasis added.]
      It is not clear whether this provision applies retroactively or just to new credits taken in 2021.
    • Makes the ERTC available if the business experienced a decline of at least 20 percent in gross receipts (instead of a 50 percent decline) as compared to the same calendar quarter in the prior year.
    • Modifies the small employer definition of qualified wages to apply to employers that have 500 or fewer employees (instead of 100 of fewer employees).
  • Creates a temporary employee retention credit of 40 percent of qualified wages up to $6,000 (maximum credit of $2,400 per eligible employee) for eligible employers affected by certain qualified disasters. This credit is retroactive and does not apply to COVID-related disasters.
  • The bill also extends the Work Opportunity Tax Credit for five years.

Paycheck Protection Program and Other Small Business Assistance

In addition to the tax provisions, the COVID-19 relief portion of this legislation contains additional assistance for small businesses, which NAPEO has been lobbying Congress in support of. Specifically, it contains the following provisions designed to assist small businesses:

  • Creates a second loan from the Paycheck Protection Program, called a “PPP second draw” loan for smaller and harder-hit businesses, with a maximum amount of $2 million.
  • Creates a simplified application process for loans under $150,000.
  • Expands the expenses that can be covered by a PPP loan.
  • Makes 501(c)6 organizations that do not lobby eligible for PPP loans.
  • Makes the expenses covered by PPP loans tax deductible.

Details on these provisions can be found on this document provided by the Community Banker’s Association.

Unemployment Insurance

The COVID-19 relief provisions also make the following changes to unemployment insurance:

  • Unemployed individuals get an additional $300 per week from December 26, 2020 to March 14, 2021.
  • Extends and phases out Pandemic Unemployment Assistance (PUA), a temporary federal program covering self-employed and gig workers, to March 14, 2021 and extends benefits from 39 to 50 weeks with all benefits ending April 5, 2021.
  • Extends and phases out Pandemic Emergency Unemployment Compensation (PEUC) which provides additional weeks when state unemployment runs out, to March 14, 2021 (after which no new applications) through April 5, 2021.
  • Extends provisions to March 14, 2021, including interest-free loans to the states.

No federal money was provided to shore up the short falls in state unemployment funds.

Miscellaneous Provisions

The omnibus spending bill contained so-called “tax extenders,” which are temporary provisions in the tax code that are designed to support specific economic activities. There are two provisions of interest to PEOs that have been extended for five years. They are: 

  • The employer credit under section 45S for paid family and medical leave, originally enacted as part of tax reform in 2017.
  • The expanded exclusion for employer-provided educational assistance, including student loan repayment benefits as enacted as part of the CARES Act. NAPEO has lobbied in support of this provision.

For more information visit NAPEO’s COVID-19 Resource Center or contact Thom Stohler.

NAPEO is offering a webinar on this bill and the impacts for PEOs and their clients on January 8th at 2pm EST. Not a Member of NAPEO? Find out how to join here.

Looking for a PEO or have questions on whether or not a PEO is right for you; visit our site at Libertate Insurance and get the questions you have answered.