Return to Work Policies Tied to Employment Practices & D&O Liability

Employers should review their return-to-work plans before the pandemic ends. It’s critical to know how to deal with Employment Practices Liability (EPL) claims that will arise as they bring employees back to the office. 

Managers should review and understand their legal obligations and company rules before bringing back employees working on remote work status due to the coronavirus pandemic. These questions and facts are helpful to consider:

• What are the company’s legal obligations to employees?
• How can the business plan to protect its employees’ health and safety? For example, employers can screen employees for coronavirus symptoms and require coronavirus testing.
• If vaccinations or testing are company policy, make it clear to employees they can be terminated if they refuse to go through a coronavirus test. In addition, employers can require employees to be vaccinated to protect their business.
• Vaccinations are not medical exams and do not violate employment discrimination laws; however, employers should document their reason for requiring vaccinations for their employees with advice from legal counsel.
• Employers with vaccine mandates must clarify that any employee who refuses to vaccinate will be fired. Nevertheless, employers should expect more claims related to COVID-19 regardless of their policies.
• Where possible, consider allowing employees worried about getting sick to continue working from home.
• Workers’ Compensation claims are likely to rise in operations with no remote work options.

Employer and Employee Rights and Legal Standing

Employers can require employees to be vaccinated if they want to work. However, employers cannot force someone to get a COVID-19 shot if they have a religious objection or a disability. However, employers can require employees to be immunized for certain diseases, including influenza, measles, mumps, rubella, chickenpox, polio, tetanus, diphtheria, pertussis (whooping cough), hepatitis A, hepatitis B, and tuberculosis. In addition, employees who refuse to be vaccinated may face disciplinary action from their employer.

Employers can ask questions during employment interviews to see if an applicant has a disability or religious objections. Companies can use different methods to bring employees back to the worksite safely. For example, it will help to inform employees that the company provides workers’ compensation benefits for coronavirus cases. 

Proper Insurance Coverage Is a First-Line Defense

EPLI policies may cover coronavirus-related claims. EPL coverage helps employers avoid costly lawsuits, and D&O liability insurance protects board members and senior executives from the same. While our advice and interpretations on legal requirements and procedures are informed by decades of experience as insurance professionals, we strongly advise seeking legal counsel for definitive answers and guidance on all legal matters.

Americans with Disabilities Act (ADA)

The ADA prohibits discrimination against people with disabilities but does not address vaccination requirements. Additionally, the ADA requires employers to reasonably accommodate workers with disabilities, including providing reasonable accommodations for those who have religious objections to vaccines.

Title VII of the Civil Rights act of 1964 

Title VII of the Civil Rights act of 1964 applies to all private-sector employers with 15 or more employees. Therefore, it is unlawful for an employer to discriminate against an individual based on their race, color, religion, sex, national origin, age, or disability.

Title VII protects individuals from workplace harassment because of their gender, sexual orientation, or gender identity. Harassment includes unwelcome conduct that creates a hostile environment. An employer is responsible for creating a safe workplace free of harassment.

Family Medical Leave Act (FMLA) 

The Family Medical Leave Act covers most employees who have worked at least 1250 hours during the previous year. In addition, employers must provide up to 12 weeks of unpaid leave per birth or adoption of a child.

The FMLA prohibits employers from discriminating against employees who take leave under the law. This rule means that employers cannot fire or otherwise discipline employees for taking leave under the FMLA. Also, an employer has to give notice before terminating an employee who takes leave under the FMLA unless there is reasonable cause to terminate the employee.

Create Clear and Precise Return-to-Work Policies 

Now is the time for employers to take measures to avoid EPL and D&O liability claims by evaluating their return-to-work plans from a legal and insurance perspective. Ensure that you’ve followed all applicable safety protocols (including handwashing, social distancing, and mask-wearing). Recognize that employers can legally screen employees for symptoms of coronavirus, but some infected personnel might still show up to work. Take precautions to protect themselves and other employees.

Set and Publish Specific Vaccination Requirements

Employers should make sure that any requirement to get vaccinated is reasonable and justified. Employees’ rights can’t be taken away unless there is an apparent reason for doing so. Religious reasons aren’t acceptable as an excuse for failing to vaccinate, and firm, clear policy statements will help managers enforce the rules.

Workers fired because of coronavirus might file a wrongful termination claim against their employers, triggering EPLI safeguards. It’s also imperative for companies to implement policies and procedures that protect workers’ health and ensure their workers will not suffer discrimination due to their coronavirus status. Lack of such policies or laxness in implementing them can open the door to D&O liability claims.

Workers’ Compensation, EPL, and D&O Liability Claims on the Rise

Due to the pandemic, Workers’ Compensation claims are rising, as are EPL and D&O allegations. The virus’s transmissibility and nature make it likely that states without strict lockdown rules experienced more workers’ comp claims than states that did. Likewise, certain businesses with employees working in factories or meatpacking plants are more likely to have employees file claims than those who work in offices. Logically, companies that have kept their businesses operating by allowing people to work remotely see fewer claims. 

Employees can help employers mitigate risk by engaging in an interactive process to return them to work safely. In addition, employers can put in place various measures to protect themselves from potential EPL and D&O liability. These include having a firm, clear policy on what constitutes a reasonable accommodation, providing PPE, developing a well-thought-out protocol for interacting with clients and customers, and developing a plan for bringing back employees in an orderly fashion.

Insurance Companies Are Responding to the Pandemic Changes

EPL carriers are trying to use layoff or reduction-of-force exclusions to protect themselves from lawsuits. Claims are hitting now, but EPL carriers anticipate that bodily injury exclusions will be used as part of their defense strategy. However, if there is an increase in severity or frequency of claims, EPL carriers may try to attach broad COVID exceptions or reduce costs by adding cost-sharing payments. Such stringent measures accurately reflect insurance carriers’ deep concerns due to the potential severity of pandemic-related issues. 

Alleviate Professional Liability with Professional Advice

Employers should consult with legal professionals to establish a plan for returning their employees to work. Some legal professionals specialize in employment law and advise employers on potential risks when employees return to work. Therefore, it is prudent for employers who do not have adequate EPL and D&O coverage to seek an insurance agent to review existing policies. Underwriters scrutinize these claims and may deny or reduce coverage if there is evidence of employee misconduct.

Employers need to be aware there is no current pandemic case law and that plaintiffs’ attorneys will exploit this fact until there is more case law. In addition, employers should review EPLI and D&O liability insurance policies to make sure they cover coronavirus. 

Employment Practices Decisions

There are many EPLI considerations when dealing with coronavirus. These include whether an employer should be required to provide sick leave or paid time off (PTO) during the pandemic. Employers may also need to consider whether employees who test positive for COVID-19 should be allowed to return to work and when. Additionally, employers must consider any potential discrimination claims under the Americans with Disabilities Act (ADA), as well as other laws such as the Rehabilitation Act, Title VII of the Civil Rights Act of 1964, and the Family Medical Leave Act.

Comprehensive Coverage at Competitive Rates

Effectively protecting your company from employment practices liability requires having comprehensive EPLI policies in place before anything happens. EPLI and D&O liability safeguards are no longer just a concern for mega-corporations. Today, more small and medium-sized businesses are being targeted by disgruntled employees suing for potentially disastrous amounts. 

Dickstein Associates Agency offers a full suite of insurance, employee benefits, and risk management solutions, including EPL and D&O Liability Insurance, to meet our clients’ varied needs. As such, we are eager to use our expertise to help you safeguard your business by using our independent agent status to shop your complete insurance needs among the top carriers for the most comprehensive and competitive rates.

About Dickstein Associates Agency

Dickstein Associates Agency has distinguished itself as a leading provider of personal and business insurance in the tri-state area since 1965. We pride ourselves on being advocates for our clients and providing them with quality and affordable coverages. As Trusted Choice™ independent insurance agency, we partner with various national and regional carriers, allowing for flexible coverage for each client’s unique circumstances. For more information on how you can leverage all your insurance to work best for you, and how we can secure the best insurance in the marketplace suited to your specific needs and business objectives, contact us today at (800) 862-6662 or www.dicksteininsurance.com.