Beazley Speaks on EPL Changes for Businesses Affected by COVID-19

There has been a lot of discussion as of late regarding the impact of COVID-19 on Workers’ Compensation, Business Interruption, Health Benefits, etc., but what about Employment Practices Liability?  Below is a great overview of the ever changing landscape of EPL due to COVID from our friends at Beazley.

____________________________________________________________________

Around the world, governments responded to the COVID-19 pandemic in March 2020 by implementing various restrictions on the movement of people through quarantines, lock-downs, stay at home orders, and other similar measures.  Businesses, particularly those in the service and retail industries, were most affected by these measures.  People were staying home, which meant no customers:  No diners at restaurants.  No shoppers in the malls.  Nobody getting haircuts, manicures, pedicures, or massages.  Many of the affected businesses have either announced permanent or indefinite closures or reduced service, and consequently, have had to furlough, layoff, or permanently terminate the employment of hundreds of thousands of employees.

 

Many businesses with financial difficulties are Client Companies of PEOs.  As a result, with both new and old Claims, Beazley has noticed an increase in Client Companies unwilling or unable to pay amounts for defense or indemnity within their SIR.  For Client Companies facing an uncertain financial future, they are unwilling to engage in settlement negotiations or mediation.  Rather than committing their limited resources to settlement, Client Companies want to preserve or use those funds to keep their businesses running by paying employees and other overhead expenses that remain despite reduced business income.  Unfortunately, there are also some Client Companies whose businesses will not survive; and they are simply unable to fund amounts of settlements within their SIRs.  There is no one size fits all solution.  All Insureds have differing limitations; and Beazley has been working collaboratively with its PEOs and Client Companies Insureds to strategize the best approach to resolving each claim in this COVID-19 environment.

 

Moving forward, Beazley anticipates more COVID-19 related claims including:

 

  • Claims for violations of the Family Medical Leave Act (FMLA) and/or the Families First Coronavirus Response Act (FFCRA) for discrimination, retaliation, wrongful termination, or failure to rehire for voicing concerns or making requests regarding COVID-19, missing work to recover from (or care for another with) COVID-19, etc.
  • General notices of mass layoffs or reductions in force.  (Note:  Typically, coverage is unavailable, but in certain circumstances, an Employment Event sublimit coverage may be available.)
  • Third Party Discrimination against persons of Asian descent.

 

As part of the renewal process, Beazley is considering PEOs and Staffing Firms’ strategies to addressing COVID-19 and the COVID-19 induced recession.  Some of Beazley’s questions are:

 

  1. Does the PEO work with their Client Companies to ensure they have an effective Business Continuity Plan for COVID-19?
  2. What protocols do the PEO and their Client Companies have if worksite employees are or were infected with COVID-19?
  3. Are Client Companies required to consult with the PEO before any terminations, and layoffs, reductions in force, or downsizing?
  4. What support does the PEO provide their Client Companies with to comply with employment laws, including the FMLA and FFCRA?
  5. Does the PEO offer advice to their Client Companies regarding worksite employees working from home?

______________________________________________________________________

To hear more about the impact on Employment Practices Liability due to COVID-19, please join NAPEO’s EPLI Webinar, this Thursday July 16th, 12pm ET. Libertate’s own President, Paul Hughes, will be moderating.

https://www.napeo.org/events/events-calendar/town-hall-series

Fears of unsafe conditions raise worker rights concerns

 

As the numbers of COVID-19 infections continue to climb, employment attorneys say fearful workers have limited rights in refusing to work, while employers have legal obligations to provide a safe place to work.

It’s an intersection legal experts say calls for enhanced communication between companies and their workers and a constant adherence to evolving state and federal laws guiding work during the pandemic.

“Companies need to assure employees they are on top of this; it goes a long way,” said Matt Hinton, New York-based partner for risk consulting firm Control Risks Ltd. He says the issue is one to watch as more states lift restrictions.

The Occupational Safety and Health Administration and the Centers for Disease Control and Prevention have both issued guidelines on workplace safely. As of Wednesday, at least one state — Oregon — is gearing up to create permanent workplace safety guidelines for infectious diseases.

A majority of employers say they have plans in place. And safety professionals are telling employers to encourage employee engagement in safety protocols. Yet concerns are growing over whether employers are doing enough. On Monday, unions representing some 60,000 Nevada hospitality workers sued three casino properties over alleged unsafe working conditions related to the coronavirus.

Worker fear is a genuine concern, but it’s not enough to refuse work, said Courtney Malveaux, Richmond, Virginia-based principal and attorney with Jackson Lewis P.C.

The rule is a worker must have a “specific” concern, he said. An example would be if the workplace is not clean, or the worksite is not following local regulations such as requiring individuals to wear masks.

“A generalized fear of COVID does not provide a basis for refusing to work; it has to be a specific fear of a circumstance at that employee’s workplace,” Mr. Malveaux said. “It also has to be a fear that is made in good faith and is reasonable to others.”

An employee with a compromised immune system or other health issue that puts him or her at risk for COVID-19 complications could be protected by the Americans with Disabilities Act, which would require the employer to work to find the employee an accommodation, such as an alternative work environment, he said. Any concern with work “must be specific to the workplace or the employee” with a health condition, he said.

Maurice Emsellem, Berkeley, California-based program director of the National Employment Law Project, said worker rights advocates are calling on the federal government to outline more specific guidelines for those who refuse work under certain conditions. He said that what is in place among OSHA, CDC and ADA may not be enough.

There is also concern that state unemployment agencies are not keeping up with the changing landscape. “(Workers) are vulnerable because they lose their unemployment benefits if the state agencies don’t do the right thing,” he said. “In general, workers have to know they can refuse unsafe work.” In most states, a worker who quits a job cannot collect unemployment benefits.

Expect litigation, said Maxfield Marquardt, Los Angeles-based counsel and associate director for regulatory affairs at Trusaic Inc., a compliance technology company. Many state laws create parameters for employees to work “at will,” he said.

“An employee has the right to not show up for work,” he said. “But will they keep their jobs? … An employer can say, ‘You want to work? Come in.’”

Disagreements over whether conditions are safe, or whether an employer is following safe guidelines, are “part of the reason you are going to see a lot of litigation,” Mr. Marquardt said. “Litigation and regulatory guidance are evolving at a fast pace. OSHA could change its guidelines Friday; the CDC may change its guidelines again.” How can companies avoid the potential legal mess? Pay attention and consider the federal, state and local workplace mandates as “the bare minimum” in ensuring safe working conditions, Mr. Hinton said. “The employee sentiment is the important piece,” he said. “Have a path for your employees to raise their hand and say, ‘This isn’t working.’”

Listening to employees will be key, said Kim Brunell, Washington-based associate director at Control Risks. “You have to have a collaborative approach to safety,” she said. “Employers that do that best consider the context of a particular work environment.”

 

Originally posted on July 1st, 2020 by Louise Esola for Business Insurance

As COVID-19 Spreads, Beware of EPL Risks

As businesses of all sizes strive to protect their employees and preserve cash flow during the coronavirus pandemic, likely the last thing on most of their minds is employment practices liability (EPL) exposures. But EPL risks are higher during pandemics and other periods when employers are more likely to furlough, lay off or ask employees to work from home.

Despite federal legislation aimed at relieving financial burdens on workers and their employers, many businesses face difficult choices – and more complicated record keeping.

The Families First Coronavirus Response Act (FFCRA), which takes effect April 1, permits workers to take paid public health emergency leave to care for themselves or their children through the end of 2020. The law requires employers with fewer than 500 employees to provide up to 12 weeks of paid leave for employees who cannot work due to the closure of their children’s school or child-care provider during the public health emergency. The law generally requires employers to restore the employee to his or her former job after leave, unless the employer has 25 or fewer workers, or the position no longer exists due to economic conditions resulting from the public health emergency (source 12).

Several EPL risks for businesses can arise from the current coronavirus (COVID-19) outbreak. These include:

Wage-and-hour issues. Employers should carefully track employees’ working time, especially in work-from- home arrangements, as well as during a furlough. Work hours are common tipping points for eligibility under an employer’s employee benefits plan.

“A lot of employment issues arise from COVID-19. Frequent questions I get from employers concern furloughs, layoffs, and working from home,” said Kunal Shah, Of Counsel at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas. “If a business temporarily closes its doors, or significantly reduces its staff and hours, how do we navigate employee compensation and benefits? Insureds need to be mindful that furloughs, if not handled properly, can lead to significant wage-and-hour claims.”

If an employer requires employees to take unpaid leave through furlough, problems can arise if employees are asked to spend even a little bit of that time working, Shah cautioned. “An employer can furlough an exempt employee, but if the employee does one second of work, he or she is entitled to full pay for the entire pay period under the Fair Labor Standards Act,” he said.

“Employers need to be mindful of local and state ordinances, too. Employees of businesses that are deemed non- essential should not be working if they are under a shelter-in-place order,” Shah said.

Hours spent working matter, to workers and their employers. “Benefit plans may no longer provide benefits if hours fall below a certain threshold,” Shah explained. “For example, if a full-time employee goes below a certain hours minimum required for benefits under their group health plan, he or she may trigger coverage under COBRA,” or the Consolidated Omnibus Budget Reconciliation Act, a federal law that allows workers to obtain group health insurance temporarily, usually for up to 18 months.

“The reverse can also happen, where an employee works more hours than agreed upon, thus making him or her eligible for certain benefits otherwise not agreed to. For these reasons, timekeeping and logging hours are important steps for every employer, especially in a working-from-home arrangement,” Shah advised. Relying on employees to track their own time can be risky. “Asking employees to report their hours daily, even in an e-mail, is a good way to document work time if an employer lacks a logging system for remote workers,” Shah suggested.

“Also, employees who are on unpaid leave or working less hours due to furlough can still apply for unemployment benefits. An employer must be mindful of these sorts of situations to avoid wage-and-hour claims,” Shah advised.

Wrongful termination. Reductions in force (RIFs) are an unfortunate fact during economic downturns, such as the one that is occurring due to COVID-19. RIFs often lead to wrongful termination claims, and potentially even class-action lawsuits.

Because the coronavirus so far poses greater health risks to people over age 65, people with obesity and underlying uncontrolled health conditions such as diabetes or liver disease, and pregnant women, employers must proceed carefully with terminations. The Centers for Disease Control & Prevention offers information resources to help business and employers slow the spread of COVID-19 (source).

It might seem logical to some employers to lay off workers at greater risk of contracting COVID-19, but that is problematic and could invite lawsuits alleging discrimination and wrongful termination.

Americans With Disabilities Act (ADA) issues. The U.S. Equal Employment Opportunity Commission enforces anti- discrimination laws, including the ADA and the Rehabilitation Act. With the stress and anxiety over COVID-19, employees with disabilities might make more requests for reasonable accommodations under the ADA. Employers should consider any accommodation requests during the pandemic in the same manner in which they otherwise would. The EEOC also has published guidance for employers on COVID-19 (source).

The ADA allows employers to seek certain information about employees’ health and disabilities, insofar as such information is job-related and consistent with “business necessity,” but employers must remain aware of their obligations to apply it consistently and keep information confidential.

“Because we are dealing with a pandemic, it is now OK for employers to take employees’ temperatures or send an employee home if he or she is exhibiting COVID-19 symptoms, but any information an employer collects about an employee’s health must be treated as a confidential medical record,” Shah said. “During a pandemic like COVID-19, employees exhibiting symptoms consistent with the virus post a direct threat under the ADA, warranting an employer’s questions out of business necessity. Employers should remember that all other aspects of the ADA remain in effect. There is still the potential for retaliation claims under the ADA and other laws.”

Third-party discrimination. Another form of EPL exposure is third-party discrimination. Such claims may come from customers or others. For example, refusal of service or preferential treatment could be construed as third-party discrimination.

“Businesses all over the United States have been mandated to practice social distancing and not put their employees or customers in jeopardy. Businesses can’t prevent claims, but they may have lots of meritorious defenses,” Shah said.

Original article posted by CRC Group Wholesale & Specialty

Pandemic Roiling D&O Marketplace

As the coronavirus pandemic continues to grow, the directors and officers of public and private organizations are facing risks on two fronts: the economic impacts of COVID-19 and litigation. Adding to the challenge is a hardening insurance marketplace.

D&O liability insurance was already undergoing a market correction before the pandemic, after years of poor results and growth in claims. The uncertainties that COVID-19 is bringing to all sectors of the economy will undoubtedly lead to further changes – not only in the form of higher rates, but also tighter terms and conditions, as well as additional exclusions.

These trends will make navigating a complex line of coverage even more challenging, but they are not unprecedented. D&O insurers similarly tightened their underwriting during the financial crisis in 2008, then eased coverage restrictions after the global recession ended.

Times of crisis historically make directors and officers more frequent targets of litigation, as plaintiffs scrutinize organizations’ decisions. Generally, D&O allegations tend to fall into three categories: disclosures, particularly for public companies; mismanagement, especially when companies post results or their share prices drop precipitously; and insolvency. Even when a lawsuit is found to have no merit, organizations still must defend it, and those expenses can quickly mount.

D&O LAWSUITS OVER COVID-19

The Securities and Exchange Commission has encouraged public companies to disclose the impact of the coronavirus on their operations and financial condition, even as the SEC notes the future impact is uncertain. But public statements can get companies into hot water, as recent litigation shows.

Several lawsuits naming organizations and their directors and officers have already been filed with allegations relating directly to the coronavirus pandemic.1 A sampling of lawsuits include class actions against:

  • Norwegian Cruise Line Holdings Ltd. In March, plaintiffs filed a federal securities lawsuit alleging, among other things, that the cruise line made false and misleading statements about the impact of COVID-19 on the company’s operations and business prospects. The lawsuit also cited media reports of leaked internal memos directing the cruise line’s sales staff to lie about the coronavirus.2
  • Inovio Pharmaceuticals Inc. Also in March, plaintiffs filed a securities lawsuit alleging the biotechnology company made false and misleading statements that it had designed a vaccine for COVID-19 in three hours. A research firm called on the Securities and Exchange Commission to investigate Inovio’s statement, suggesting it was “ludicrous and dangerous.”3

Article originally posted on CRC Group Wholesale & Specialty Group 

California Workers’ Compensation Impact Projections – COVID19

As our clients continue to grow their businesses during the COVID19 pandemic, it has never become more important to select the right client company exposures to take risk on and those to lay off on guaranteed cost policies.  Having an underwriting strategy for risk selection and understanding of proper pricing as a result of COVID19 is an issue that needs to be focused on in this dynamic environment.

As with any projection, as time goes by, the future is understood with greater certainty.  As I continue to monitor the “risk load” attributable to COVID19 on a State by State basis, it made me think of one of my literary heroes and a famous quote of his:

“A habit of basing convictions upon evidence, and of giving to them only that degree or certainty which the evidence warrants, would, if it became general, cure most of the ills from which the world suffers.”  – Bertrand Russell
Why?  Because we are still dealing with “evidence” on COVID19 that is uncertain.   How much we can warrant forecasted outcomes as a result is therefore uncertain.  Besides the fact we are dealing with a 1 in a 100 year pandemic with no script to work off from the past, the models forecasting number of events and costs are built off of social distancing and staying at home; these variables being complicated by the reopening of States on the rise and social demonstrations triggered by the Floyd case/police brutality.
That said, based on the evidence in California at present, the middle of the road estimate is the addition of $1.2B of system costs to the current system costs of $18.3B, or 7%.
The low end is 3.3% and high end 11%.  These costs emanate from the mid-range loss estimate of 31,100 COVID19 claims.  Please note that this projection is based off the Governor’s order of presumption only lasting through July 1, 2020.  Of these expected claims, it is anticipated the costs will be as follows:
Claim Type               %               Expected Costs per Claim
Mild                           82                          $2,100
Severe                      10                           $74,800
Critical                        3                           $191,100
Death                         5                            $280,500
While I found this projection on the surface to be light, Mr. Stypla and I than contemplated the facts that California was one of the first to close and has been very strict in “stay at home” protocols.  As a result, their fatalities per 100,000 people are far less than other populous states:
Cases/ Fatalities/ 100,000
California – 347/12/100,000
New York – 1,951/157/100,000
Texas – 270/6/100,000
Florida – 307/13/100,000
New Jersey – 1,855/139/100,000
Illinois – 1,020/48/100,000
Michigan – 651/60/100,000
Wisconsin – 366/11/100,000
Ohio – 335/21/100,000
Mass. – 1,507/108/100,000
As you can see, there is a wide range of events by State with California being on the lower end of the spectrum.  So the take away is based on evidence today, California appears to be outperforming against initial forecasts and the country as a whole.  Hopefully the numbers will stand, but to belabor it, these are very fluid forecasts based on evidence available as of today.

Thanks For Joining Us @ NAPEO 2019

Libertate Insurance wanted to thank you for joining us at NAPEO 2019 in Austin! I hope everyone had a great time and learned a lot from the breakout sessions!

We hope you gathered some valuable information about the impact that Big Data and AI/ML can have on you and your PEO! We look forward to a great year ahead!

NAPEO19 Annual Conference & Marketplace

September 16-18, 2019

The conference planning committee continually strives to improve the content of the conference and this year will be better than ever!

From an educational point of view, there will be three tracks:

  • PEO Operations: This is new for 2019. Thanks to NAPEO’s Conference Chair Norman Paul, we have designed a new and ongoing focus to help PEOs improve operationally with instructional guidance in the areas of payroll, workflows, and overall efficiency.
  • Compliance: This topic is not only important to PEO customers, but to the liability of PEOs. The landscape and requirements are ever-changing and NAPEO’s staff and committees are staying on top of this to make your lives easier and reduce liability. This track will keep you abreast of the latest changes in the law and how best to navigate them.
  • Growth: Now is a great time to be in the PEO industry. The industry is growing and the market is embracing PEOs and outsourcing HR functions. NAPEO has been hard at work creating tools for our members to increase awareness and drive home the value of PEOs. In addition, your industry colleagues will be sharing their best practices about what works for them to grow their PEO’s.

Look forward to seeing everyone there! Check out the below link for more details on this years Conference.

https://www.napeo.org/annual-conference-2019

2016 Workers’ Compensation Combined Ratio is a 94 per NCCI

It has been a busy month of conventions… NAPEO Legal and Legislative, RIMS and last week the NCCI.  On the ground at the PACE conference in New Orleans, a look back at the NCCI AIS.

The National Council of Compensation Insurance (“NCCI”) Annual Issues Symposium is the preeminent conference for understanding all things workers’ compensation.  Industry experts in the carrier, reinsurance and brokerage communities converge in Orlando every year in May to better understand the meaningful trends in the workers’ compensation line of insurance. The most meaningful number of this year’s event was 94… the lowest combined ratio of any other year since 1990 with the exception of 2006 (93).  It should also be noted that this is a 6 point drop from the 100 of last year and represents one of few years <100.

Based on typical patterns, this is now where capital enters the market… which was illuminated when the NCCI literally sold out of tickets.

With NAPEO’s Legal and Legislative Conference two weeks ago, the NCCI conference last week and PACE in New Orleans this week… it has been a high school reunion of sort – seeing good friends, telling old stories and commiserating on how to make the PEO industry the optimal platform for American business.  Health insurance maybe in the news every day but workers’ compensation is the line of business that PEO’s must have.

The origination of the PEO Compass was to provide an executive summary of all things workers’ compensation and how they impact all things PEO.  The NCCI is a huge driver of this nationwide and sets rates and rules in 37 states.  The document attached is a must read for those like me that are workers’ compensation and data geeks.

https://www.ncci.com/Articles/Documents/II_AIS2017-SOL-Guide.pdf

For those that are not (or would prefer not going through 57 slides), the highlights below:

  • The total P/C industry’s 2016 combined ratio (101%) represents a three-point increase versus that for 2015.
  • Combined ratios increased in all lines of business except workers compensation (slide 4)
  • Premium for the NCCI-serviced Residual Market Pools has remained stable over the last four policy years, at approximately $1.1 billion. (slide 12)
  • Between 2015 and 2016, countrywide private carrier direct written premium grew +2.4% (slide 15)
  • The percentage change in payroll (+4.5%) is approximately equal to the percentage change in the average wage (+2.5%) plus the percentage change in employment (+1.9%).  Employment grew at an above-average rate for the Professional and Business Services; Education and Health Services; Construction; and Leisure and Hospitality sectors.  Employment in the Manufacturing sector was flat, while the All Other sector posted a decrease primarily due to declines in Natural Resources and Mining employment (slide 17)
  • NCCI workers’ compensation filings with effective dates in 2017 averaged –6.7%… California and New York are already seeking approval for rate decreases which are not even part of this data set (slide 18)
  • In 2013, more than 70% of respondents saw an increase in premium at renewal, but by the fourth quarter of 2016, 62% reported seeing a decrease in premium at renewal (slide 23)
  • The workers compensation 2016 calendar year combined ratio for private carriers was 94%. This is the second consecutive year that the industry has posted a six-point underwriting gain. Consecutive combined ratios at this level have not been seen in at least the last 30 years (slide 24)

What this means is that workers’ compensation has become a very sexy line of insurance risk-bearers.  With favorable improvements in operating and investment performance, the median expected rate of return is +20%.  Again, it is therefore no surprise that this years NCCI AIS conference was sold out months prior to the event.

For those that happen to be in New Orleans this week for the annual PACE conference, let’s meet up and strategize in person about the great opportunities ahead for the industry.

– Paul R. Hughes

c: 321.217.7477

e. phughes@libertateins.com