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Survey Report

Insurance Marketplace Realities 2022 – Employment practices liability

Talent|Workers Compensation
N/A

November 15, 2021

While the EPL rate environment is slightly improving, it is still a challenging market driven by uncertainty regarding COVID-19, vaccine mandates and lack of new competition.

Rate predictions

Rate predictions: Employment practices liability
  Trend Range
Primary (domestic markets) Increase (Purple triangle pointing up) +10% to +30%
Bermuda markets Increase (Purple triangle pointing up) +10% to +20% with minimum retentions of $1m

Key takeaway

While the employment practices liability (EPL) rate environment is slightly improving, it is still a challenging market driven by the uncertainty regarding COVID-19 and vaccine mandates and by lack of new competition.

We expect the EPL market to continue to be challenging into 2022.

  • The extent of rate increases will be determined by many factors, particularly industry, loss history and location of employees. Assuming no change in risk profile and no losses, rate increases are more likely to be at the lower end of the range provided above. California continues to be the most problematic jurisdiction, with New Jersey, New York and Florida not far behind.
  • Retentions: Expect continued pressure on primary retentions, especially in California. Expect separate retentions for California claims and for highly compensated employees (particularly in healthcare and financial institutions).
  • Limits: Many domestic markets are looking to reduce their limits to $5 million.
  • Excess: As in other lines, excess EPL markets are following primary increases in addition to looking to correct increased limit factors (ILFs).
  • Capacity: Overall capacity in the EPL market is stable, but it is becoming more limited for the industries that have been stressed (healthcare, retail, hospitality and leisure) as a result of COVID-19 and for first-time EPL buyers overall. Lack of competition for these risks is contributing to rate increases.
  • Underwriting: Expect a significant number of questions related to COVID-19 return-to-office plans and vaccine mandates.
  • Coverage: Coverage is intact, with limited COVID-19 exclusions added on a case-by-case basis. Many carriers continue to add privacy/biometrics exclusions.

COVID-19 employment-related litigation is expected to keep trending upward.

  • More than 3,000 employment-related complaints have been filed thus far. Disability, leave, accommodation claims lead the way for single-plaintiff claims, but wage and hour claims lead the way for class actions.
  • California, New Jersey and New York lead in number of complaints filed.
  • Hardest hit industries are healthcare and retail.
  • As offices reopen and vaccine mandates are implemented, we expect claim numbers will increase.

Vaccine mandates are top of mind for employers and underwriters.

  • The EEOC has provided guidance stating that employers may mandate vaccination in order to enter the workplace, but must do so within the legal confines of the Americans with Disabilities Act and Title VII.
  • President Biden’s COVID-19 plan requires all employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to produce a negative test result at least weekly before coming to work. The Department of Labor’s Occupational Safety and Health Administration will issue further guidance to implement this requirement.
  • Various states have their own laws regarding mandates, so it is imperative to consult with employment counsel to ensure compliance with all relevant laws.
  • Be prepared to discuss vaccine mandate plans with your EPL underwriters.

Socially driven movements like #MeToo, Pay Equity and Black Lives Matter impact employment practices liability litigation and legislation.

  • While #MeToo claims are still coming in, there has been a shift to employee activism, with employees pushing their employers to take stances on social issues.
  • Inclusion, diversity and equity continue to be in focus in many organizations — continue to expect more questions from underwriters about your organization’s inclusion, diversity and equity initiatives.
  • Many states continue to pass state-specific legislation regarding pay equity, wage discrimination and sexual harassment.

Increased privacy protections and increased potential for employee privacy violations are other drivers of market conditions.

  • The Illinois Biometric Information Privacy Act (BIPA) has been the subject of many class action claims against organizations with employees in the state of Illinois. Losses for BIPA class action claims are in the millions of dollars. Recently, New York City and Portland, OR passed similar legislation with a private right of action.
  • Many EPL policies now have an exclusion for BIPA claims, with some having language broad enough to exclude all confidential information claims. Other coverage lines, like cyber and general liability, may offer some coverage for these exposures.
  • As offices reopen, many employers are collecting more information about employees (as part of symptom checking, contact tracing, temperature checking, COVID-19 testing, vaccine questions, etc.), which may lead to more employee privacy claims and ADA claims.

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. 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 advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed subsidiaries of Willis North America Inc., including Willis Towers Watson Northeast Inc. (in the United States) and Willis Canada, Inc.

Contact

Employment Practices Liability Thought and Product Leader,
FINEX North America

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