ILMA Compoundings - January 2021 - 29

Intentional acts, on the other hand, might be a different
matter. If the employer commits a gross act that deliberately
puts people at risk, such as hiding important health information, workers' compensation might not reimburse the
employee. " If it is determined that the illness is not covered
by workers' compensation, then the employee can pursue
tort causes of action against the employer, " said Harbison.
" There are two exceptions in Texas, for example, where a sick
or injured employee can sue under common law negligence.
The first is where an employee's death is caused by the
employer's gross negligence. The second is where the injury
or illness is due to an intentional act. Other states have
different exceptions. "
Employers can take steps to minimize the risk. " ILMA
members should be prepared to show that they complied
with guidelines from the CDC, the Occupational Safety and
Health Administration (OSHA) and their states, " said Leiter.
" That would go a long way toward disproving causation or
charges of employer negligence. The Occupational Safety
and Health Act of 1970 has what's known as a 'general duty'
clause that requires employers to provide a safe workplace
free from recognized hazards. "
Employers should also stay abreast of changing state laws,
added Leiter. " States like Virginia, California, now Michigan
have adopted emergency standards that basically make the
OSHA and the CDC guidelines mandatory and have significant fines if you fail to comply. "
Some aspects of the law remain unsettled, and only time
will bring an answer. " One of the things that I'm looking at
right now is what I call 'long haulers,' " said Leiter. " Those
are people who have been infected with COVID-19 and
who, months later, still say they haven't recovered. Sometimes
they have lung issues or feel like their brains are in a fog. The
question then becomes: How long does it take for their conditions to become disabilities, so they are entitled to reasonable
accommodations under the Americans with Disabilities Act? "

EMPLOYMENT PRACTICES LIABILITY
INSURANCE

When bringing work-at-home employees back to the
workplace, or when rehiring furloughed or fired employees,
businesses need to avoid unintentional discrimination toward
any category protected by federal, state and local laws. These
include age, race, sex, religion and national origin. The same
discriminatory caution applies to decisions granting or withholding leave for reasons related to the pandemic.
Unintentional discrimination can occur for a variety
of reasons. Suppose a well-intentioned employer decides
that people who are at special risk of serious effects from a
COVID-19 infection should be told to remain home rather

than return to work. That group includes older employees.
Those individuals may have a cause of action against the
employer - either because they are not paid an amount
equivalent to younger people as a result of their failure to
be brought back to the workplace, or because they lack the
opportunities for advancement that can only be had through
physical proximity to colleagues and supervisors.
The costs incurred by such discrimination may well
be covered by EPLI. Such insurance is intended to cover
employers against lawsuits brought by employees under
Title VII of the Civil Rights Act of 1964 and other employment-related statutes. " Most EPLI policies include coverage
for discrimination based on certain prohibited categories
such as age, race and sex, " said Harbison.
One caveat: Many insurance policies will not cover
damages that are incurred by intentional acts that exhibit
" wanton, willful, reckless or intentional disregard " for the
law. That can present a problem in the case of lawsuits.
" Discrimination claims are usually based on intentional
conduct, " noted Harbison. " And such claims may not be
covered by insurance. "
These guidelines offer some insight into the usual EPLI
coverage, which can vary widely among insurers. " I would
advise all employers to document their reasoning behind their
hiring and firing decisions, " said Sardis. " Employers should
also consult with their EPLI carrier prior to any major staffing
decisions to ensure all proper steps are followed. "

REVIEW AND RENEW

The interpretations in this article are based off what is typically
seen in standard policies. Many carriers enhance, reduce or
even eliminate common coverages. " Insurance policy terms and
conditions vary greatly from carrier to carrier, and even standardized coverage often has the meaning of key terms changed
by endorsement, " said Sardis. " There is no hard and fast rule as
to whether any particular type of claim will be covered. "
Given the fluid nature of the risks posed by the coronavirus pandemic, employers need to take a fresh look at their
insurance coverage. Rather than consider the information in
this article as legal advice, readers should utilize its ideas as a
framework for discussions with qualified attorneys.
" ILMA members should ask a number of questions, "
Leiter said. " The first is 'What kind of legal exposures could
we possibly have as a result of COVID-19 illnesses?' The
second is 'What kind of steps can we take to mitigate them?'
And the third is, 'When looking at our insurance as a risktrust transfer mechanism, what are some issues we might
have with our policies?' "
Perry is an award-winning journalist and director of EditorialCalendar.net.
He is based in New York City.

http://www.EditorialCalendar.net

ILMA Compoundings - January 2021

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