As an employer, your priorities include making your workforce feel valued and successfully managing the organization. Unfortunately, even with best practices for staff relationships, employment practices liability (EPL) risks remain. Coverage for EPL is crucial to your organization. The policy can offer protection for claims that result from employees alleging various employment-related issues, such as discrimination, harassment and wrongful termination.
Along with securing EPL coverage, staying current with market trends will provide your organization with necessary information needed to respond appropriately and make coverage adjustments.
Review this guidance to learn more about EPL trends to watch in 2021. It is not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. Readers are advised to contact counsel for legal advice. Any action you take upon the information is strictly at your own risk.
The COVID-19 Pandemic
The COVID-19 pandemic has forced many organizations to make workplace changes to include remote work, office layout adjustments, staff layoffs and/or furloughs. These changes, or failure to make these changes, were influential in increasing EPL claims.
Some of the most common, pandemic-related EPL claims include:
- Unsafe working conditions or lacking precautionary measures (e.g., poor sanitation practices, deficient social distancing protocols or inadequate personal protective equipment) contributed to employees contracting or dying from COVID-19.
- Retaliation to objections of unsafe working conditions or workplace exposure to individuals displaying COVID-19 symptoms.
- Disability discrimination (e.g., failing to accommodate or denying employees remote work options).
- Employee leave concerns (e.g., imposing staff leave, retaliating against leave due to COVID-19 or not allowing COVID-19 leave altogether).
- Laying off or furloughing staff without providing proper employment notices.
- Furlough or layoff discrimination.
As the country continues to implement vaccine distribution in phases, employers may deliberate whether to encourage voluntary compliance or mandate employee vaccination. The Equal Employment Opportunity Commission (EEOC), which enforces the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), has issued guidance regarding vaccines in the workplace.
The EEOC explains an employee may be entitled to a mandatory vaccine exemption based on a disability that prevents the employee from getting the vaccine. The EEOC also states that, under Title VII, employees with genuinely held religious beliefs may be entitled to an exemption from a mandatory vaccination. Both exemptions would be recognized as reasonable accommodations.
Employers should consult with legal counsel prior to implementing any vaccination policy. Each employee should be provided with a copy of any organizational vaccination policy.
Several social movements have led to increasing in EPL claims recently including the #MeToo and Black Lives Matter demonstrations.
The #MeToo movement—an anti-sexual harassment campaign, according to the U.S. Equal Employment Opportunity Commission (EEOC), has largely contributed to a 50% rise in sexual harassment lawsuits against employers. This emphasizes the importance for employers implementing effective sexual harassment prevention measures (e.g., a zero-tolerance policy and sexual harassment awareness training programs), reporting methods and response protocols.
The Black Lives Matter movement—a racial justice campaign implementing nationwide protests—has the potential to become a driving factor in race-related workplace discrimination and harassment lawsuits. This mobilization makes it increasingly vital for your organization to take steps in promoting diversity, acceptance and inclusion in the workplace, as well as accusations or reports of racism.
The EEOC previously released guidance stating that workplace discrimination and harassment based on sexual orientation, gender identity and gender expression violated Title VII of the Civil Rights Act of 1964. In 2020, the U.S. Supreme Court confirmed that Title VII protects gay and transgender employees from such treatment and highlights the need for your organization to ensure all LGBTQ+ employees feel properly supported in the workplace.
According to the U.S. Bureau of Labor Statistics, the share of employees over the age of 55 in the labor force is expected to rise to nearly 25% by 2024. This demographic shift emphasizes the important for employers minimizing potential workplace age discrimination issues. The Age Discrimination in Employment Act (ADEA) forbids age discrimination against employees and job applicants aged 40 and over.
Despite ADEA guidance, a recent Hiscox study discovered 21% of U.S. employees reported experiencing workplace age discrimination. Such discrimination can influence deflated staff morale, a tarnished organizational reputation and increasing EPL claims. It is important to review your organization’s employment practices and foster a workplace culture rejecting ageism.
Wage, Leave and Salary History
Wage and hour laws continue to change across the country. Your organization should regularly review state-specific legislation related to minimum wage, employee classifications (e.g., hourly or salaried), overtime pay, sick leave and other paid time off. A failure to provide adequate wages or paid leave could lead to various EPL claims.
An employers’ ability to receive applicant salary history has also become a rising concern. Recent legislation in some states now prohibits requesting or requiring job applicant salary history as an interview or hiring condition. Reflecting these changes, you should receive legal counsel guidance for state-specific employee wage, leave and salary history.
Subsequent to the 2020 election, 36 states have legalized medical marijuana and recreational marijuana is now permissible in 15 states. As marijuana legalization becomes increasingly commonplace across the country, it is crucial for your organization to review any state-specific legislation and adjust workplace policies and procedures accordingly.
Your organization may also need to reconsider or revise procedures related to conducting workplace drug tests for marijuana or basing employment decisions on an employee’s marijuana usage, as these practices could potentially contribute to EPL claims. Be sure to consult legal counsel for state-specific compliance guidance on this topic.
We’re Here to Help
You do not have to respond to this changing risk landscape alone. We are here to help you navigate these EPL market trends with ease. For additional coverage guidance and solutions, contact a member of our team.