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COVID-19 vaccine: Employment practices liability implications

Financial, Executive and Professional Risks (FINEX)
COVID 19 Coronavirus

December 30, 2020

With a vaccine becoming available, employers must be prepared for potential risk exposures.

In a year where employers have had to deal with extreme workplace and financial challenges, we may be at a point where we are starting to see the light at the end of the tunnel (although we are still a long way away from actually getting out of the tunnel). Having an approved vaccine in the U.S. that has begun the distribution process is extremely good news. However, employers must be prepared for the potential risks that may arise once the vaccine is ready to be distributed to the general public. Here we will highlight some of the potential exposures, review the recent EEOC guidance and review how an Employment practices liability insurance policy may respond.

The EEOC recently provided updated guidance on how employers should proceed with vaccine requirements. Essentially, the EEOC has indicated that employers may require employees to get the vaccine but must do so within the legal confines of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. This means that to the extent there are any disability or religious related objections to getting the vaccine, the employer must engage in the interactive process and try to find a reasonable accommodation. While the guidance provides more details regarding this, it does state that, “[i]f an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.” The guidance also states that while administration of the vaccine is not a medical examination, prescreening questions may implicate the ADA’s provision on disability-related inquiries.

As we typically see with employment related matters, the administration of the above guidelines may lead to employment practices liability claims. Such as, religious and disability discrimination claims if an employee feels the employer’s handling of their objection violated the ADA and/or Title VII. There is also the potential for retaliation claims if an employee does not want to get the vaccine and is then subject to adverse employment action. There may also be invasion of privacy concerns, and the potential for disparate impact claims if accommodations and exceptions are not applied in a consistent manner. These are just a few examples of the types of claims that may arise once the vaccine becomes more widely available. It is imperative to be aware of the potential issues and proceed according to the guidance of employment counsel and the best practices noted below.

Employment practices liability insurance

Employment practices liability insurance (EPLI) provides coverage for claims made against the organization, its employees and directors and officers that allege employment practice violations, which generally include but are not limited to, wrongful termination, discrimination, harassment, retaliation, and misrepresentation. Most EPLI policies also provide third-party liability coverage for discrimination and harassment claims made by third parties against the organization or its employees.

In order to trigger coverage, there must be a claim that alleges an employment practices violation. Once coverage is triggered such coverage may be limited by certain exclusions, including but not limited to, bodily injury, worker’s compensation and benefits, Family Medical Leave Act, definition of Loss, and others. Whether a claim is covered will be dependent on the actual allegations made and whether any exclusions apply. If a claim is received, it is important to consult with your insurance broker to ensure proper compliance with the EPL policy’s reporting obligations.

Conclusion

While there is still a lot of uncertainty regarding the vaccine, and its availability to the general public is likely several months away, some best practices to consider implementing are as follows:

  1. Have a plan in place, and always consult with employment counsel when implementing new policies and procedures to ensure legal compliance.
  2. Ensure that those policies and procedures are implemented in a fair and consistent manner.
  3. Ensure proper communication to all employees, particularly line managers who will be responsible for implementation.
  4. In order to preserve coverage under your employment practices liability (EPL) insurance policy, keep in mind that written communications from employees regarding the vaccine and/or COVID-19 may be deemed a “claim” so it is important to consult with your Willis Towers Watson claims professional upon receipt to evaluate for potential notification to your EPL policy.

Disclaimer

Each applicable policy of insurance must be reviewed to determine the extent, if any, of coverage for COVID-19. Coverage may vary depending on the jurisdiction and circumstances. For global client programs it is critical to consider all local operations and how policies may or may not include COVID-19 coverage. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal and/or other professional advisors. Some of the information in this publication may be compiled by third-party sources we consider to be reliable; however, we do not guarantee and are not responsible for the accuracy of such information. We assume no duty in contract, tort or otherwise in connection with this publication and expressly disclaim, to the fullest extent permitted by law, any liability in connection with this publication. Willis Towers Watson offers insurance-related services through its appropriately licensed entities in each jurisdiction in which it operates. The COVID-19 pandemic is a rapidly evolving situation and changes are occurring frequently. Willis Towers Watson does not undertake to update the information included herein after the date of publication. Accordingly, readers should be aware that certain content may have changed since the date of this publication. Please reach out to the author or your Willis Towers Watson contact for more information.

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Employment Practices Liability Thought and Product Leader,
FINEX North America

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