Persisting uncertainty over the mandates of COVID-19 vaccines could trigger an increase in complaints of discrimination and retaliation against employers next year, according to employment practices liability insurance experts.
However, it remains to be seen what the effect will be on employment practices liability coverage.
Amid a patchwork of federal, state, local, and employer immunization policies, employee accommodation demands have increased and other employment practices liability insurance claims are of concern. Legal disputes over the validity of federal warrants should go to the United States Supreme Court.
On December 17, the U.S. 6th Court of Appeals in Cincinnati reinstated the Biden administration’s vaccine mandate for private U.S. companies with 100 or more employees. The mandate, which covers around 84 million workers, had been suspended after a series of legal challenges.
It’s a “fluid situation” and the effect on liability coverage and employment practices pricing has yet to come full circle, said Bryan Lorenz, Los Angeles-based national accounts director for the practice. of Management Responsibility at Risk Strategies Co.
Employers are doing what they can to keep employees safe, “but the vaccine requirement puts it in another category,” Lorenz said.
“I don’t think bar complainants will win a lot of cases if employees say, ‘I was fired from my job because I wouldn’t want to get the vaccine. If there is an element of discrimination that creeps into the complaint, then I can see the complainants jump on it and deal with some of those cases, ”he said.
The biggest concern is the uncertainty over vaccine mandates, said Kimberly Forrester, partner at Clyde & Co. LLP in San Francisco. “The applicability of these remains in limbo,” and immunization policies vary by region and sector, she said.
“We expect to see an increase in claims as different employers roll out their policies, and whatever they are, they negatively affect some employees,” Ms. Forrester said.
Demands for discrimination on the basis of disability and religion, especially by employees seeking exemption from immunization policies, are expected to increase, along with demands for discrimination in general, she said.
“As employees return to the workplace, some might argue that they have lost a promotion or some sort of opportunity because of their immunization status,” Ms. Forrester said.
Employment practices liability insurers are monitoring the problem, said Joni Mason, senior vice president, national head of claims management for occupational risk management solutions, at USI Insurance Services LLC in New York City.
“Our customers have seen a sharp increase in requests to adapt to their vaccine mandate, so in turn, insurers are seeing some of these claims coming in,” she said.
However, many of the requests come in the form of letters from employees or request letters from lawyers. “It’s not necessarily litigation,” Ms. Mason said.
Over the past six months, there has been a steady increase in lawsuits related to COVID-19 in general, not just those specific to vaccine mandates, said Marie-France Gelot, New York-based senior vice president, board in insurance and claims, at Lockton Cos. Inc.
“We expect, and insurers expect, that the number of claims will increase over the next year,” said Ms. Gelot.
Employers facing the prospect of litigation will ask, “Do I have insurance for this? Said Micah Skidmore, partner at Haynes and Boone LLP in Dallas.
Employment practices liability coverage is specific to various wrongdoing listed in a policy, including discrimination, wrongful dismissal, wrongful failure or refusal to employ, and wrongful discipline, Mr. Skidmore.
“These are a few examples of what you might see involved if you have a claim,” he said.
Eden Stark, vice president of financial lines at QBE North America in New York City, said the insurer has seen a slight increase in employment practices liability claims stemming from COVID-19 overall, but “doesn’t sees no significant impact on severity, resulting in losses “.
Also, the wording of the policies has not changed significantly, she said. “To specifically exclude COVID claims would be too broad. We haven’t seen any specific response directed at COVID, ”she said.
Jeff Hirsch, claims manager at FounderShield LLC, a unit of BRP Group Inc., in New York City, said a few insurers have added mandatory endorsements restricting coverage for COVID-19 claims.
Such movements are common in industries sensitive to COVID-19 claims, such as companies manufacturing or distributing personal protective equipment or companies providing services and manpower in the healthcare sector, a he declared.
“EPL premium rates have followed an upward curve and this curve has become between 5 and 10% higher in response to the pandemic. … It is safe to say that there is a factor driving the rates around vaccination mandates, ”Mr. Hirsch said.
Job applications overall were increasing before the pandemic, said Michael D’Ambrise, senior vice president of Beecher Carlson Insurance Services LLC, a unit of Brown & Brown Inc., in New York City.
Claims related to COVID-19 “including and especially (related to) vaccines” are also on the rise, he said. “These things could have an influence in terms of increasing the rate,” he said.