As 2022 approaches, millions of Americans have now been vaccinated, COVID-19 restrictions have been lifted and states have reopened. However, like many things, the employment market has changed dramatically.

As more and more offices reopen and employees are being asked to return to the office, agents can play a pivotal role in helping clients avoid employment practices liability insurance (EPLI) claims by assisting them as they adapt to the new, post-pandemic environment, as well as helping them ensure they have the right insurance coverage.

“COVID-19 has had a significant impact on employers, their employees, the workplace and potential EPLI claims," says Ron Adler, president-CEO, Laurdan Associates. “Properly responding to this workplace impact requires an understanding of how it affects not only the organization, but also how it affects the organization's employees, both as a group and individually."

“This starts with an understanding that many employees are not returning to their old jobs, to their old workplace, or their employer," Adler says.

In 2019, employers paid out over $205 million in fines and settlements for retaliation, the highest recorded in the last decade, according to Equal Employment Opportunity Commission (EEOC) statistics. And as we enter a new work environment, employers need to be cognizant of the changes brought about by “the sheer number of employment-related exposures resulting from COVID-19—furloughs, reductions in force, layoffs, disability discrimination, religious discrimination, vaccine mandate policies and return to work policies that have and will continue to increase employers' liability," Adler says.

“As employees are offered more choice in how they work—whether that's fully remote, a hybrid approach or going into an office every day—we're seeing more employees exploring their opportunities elsewhere," says Jenny Bergstrom, vice president, executive risks product head, Hiscox. “This has created a job market in favor of the employee and highlighted the importance of EPLI coverage for employers." 

As a result, “retaliation claims involving return to work and whistleblowers reporting unsafe workplace conditions are expected to be the major allegations that employers may face as workplaces reopen," says Sandra Tata, vice president, lead specialty liability, HSB.

While relevant prior to the coronavirus pandemic, agents should highlight “proactive steps clients can take to help minimize the risk of being the subject of a retaliation allegation," says Yoora Pak, partner, Wilson Elser. 

These include:

• Employers should ensure consistency in enforcing workplace policies. Whether it is compensation or discipline, uniform application of the employer's policies will provide a strong foundation in justifying any tangible employment action taken against the employee.
• The employer should maintain detailed documentation for anything related to the terms and conditions of employment for each employee. This includes all disciplinary records, compensation history and any grievances or internal investigations conducted as a result of any internal complaints. The practice of documenting the terms and conditions of employment should be consistent throughout the employment relationship.
• The employer should provide adequate training to all of its managers on how to handle interactions with an employee who has filed an EEOC charge or has otherwise engaged in a protected activity. This training should also encompass the employer's anti-discrimination policy.
• Material employment decisions that impact an employee who has engaged in a protected activity should be reviewed and not implemented until approved by appropriate representatives of the employer, such as human resources or upper management who were not the subject of any underlying discrimination complaint.

Here are four ways agents can help clients avoid such claims, according to Bergstrom. 

1) Check in with employees often. See how employees are feeling about returning to the office, including any concerns, and keep a two-way communication channel open throughout the return to the office process. This will identify any issues as they emerge and help to keep employees engaged and feeling heard.

2) Keep up to date with federal and state laws, as well as Centers for Disease Control and Occupational Safety and Health Administration guidance. The environment is consistently and rapidly changing, and laws can vary hugely from state to state. If insureds have locations across the U.S., they need to ensure that they are compliant with the laws within each state, as well as maintaining a fairly consistent approach.

3) Encourage a culture of care and consideration. There are contrasting views on the pandemic, safety measures, and returning to the workplace, and some discussions can generate a strong response. It's important to encourage a culture of respect and compassion for others' personal decisions and viewpoints by implementing guidance on how to handle difficult discussions and questions and for leadership to set good examples.

4) Consult with outside or internal legal counsel who specializes in employment law. It is best for clients do this before they need it. Developing their approach to returning to the workplace and their health and safety policy in advance will help employers sidestep any potential issues.

Olivia Overman is IA content editor.