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.

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