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This is the placing you first podcast. I'm Dan whence and this podcast features, news and insights from CRCs fast knowledge base of 2000 plus associates who write next S of $8 billion in premium annually. And we're giving you insider access to what's happening in our company and the types of insurance we place on this edition of the podcast. This is unchartered waters for all of us employers included, and most people weren't prepared for the pandemic and they had to react very quickly.
Then many of the decisions could leave them vulnerable to EPL claims. This is the placing you first podcast. Okay, so today we're discussing EPL risks during the Corona virus. We're joined now by Kunal Shah of cousel Wilson Elser, Moscowitz Edelman and Dicker LLP. He focuses his practice on labor and employment litigation and counseling. Welcome back to the podcast Kunal . How are you doing? I'm doing very well. Thanks for having me back again. Absolutely.
And from CRC we've got Alison Benda , she's a
senior broker and CRCs Nashville office, a member of the exec pro practice advisory committee. How are you doing Alison, your first time on the podcast? It is my first time. I'm good. Thank you for having me. Well, we are glad to have you here. I've been bugging you. I said , come on Alison , let's get on a podcast together and here she is finally. So we're relentless, a special treat for our listeners and our video Watchers today. So welcome. Thanks for joining us. We appreciate it guys.
Obviously we know right now businesses are operating much differently than they have in the past and that could set them up for some problems with EPL risks, especially when they've got a blind spot as far as this Corona virus thing is going on. They're so focused on keeping their business going instead of, you know, worrying about all the what ifs that insurance covers.
That's why we've got Kunal and Alison here today and well I guess we'll start with Kunal and Alison , feel free to chime in whenever you want to. The first question I have for you guys is, should businesses be concerned about EPL risks right now, especially during coven 19 and why?
Sure. Um, what I've seen in immediately in the last few weeks is businesses are considering layoffs for lows , uh, modifications of work schedules. Obviously modific modifying the work arrangements so people can work from home. Those decisions are being made immediately.
Um, sometimes without consulting, not even just an attorney, but even internal HR because the threat is so frightening that people are moving very quickly that immediacy and not double checking what you should and should not be doing. Um, sometimes it's unfair because people don't really know.
I mean everything keeps changing, but ms managing certain decisions regarding layoffs or furloughs or work from home arrangements , uh , that can certainly trigger EPL , um , and the traditional discrimination cases and more so in the wage based claims.
Absolutely. I would echo those comments and say that, you know, we're, this is unchartered waters for all of us. Employers included and most weren't prepared for the pandemic and they had to react very quickly. Um , and many of the decisions could leave them vulnerable to EPL claims, as can all mention things like discrimination, wrongful termination, wage an hour matters. And you know, these claims get continue far after things. Get back to some sort of normalcy
and talking about normalcy. There's [inaudible] expected legislations surrounding all of this and one of those bills. It's out there as the family first Corona virus act. How does that play into the concerns for EPL?
So the Corona virus relief act , what it does is it significantly expands the FMLA , uh , and it provides sort of a , a mandatory allowance of sick leave right there that will put employers um, at more of a risk for FMLA retaliation claims that I can think of because generally the FMLA is only available to employers that made a certain amount of employee minimum threshold. The employee hours worked. What the FCRA does is that it expands the FMLA.
It applies to all businesses, immaterial of size and the requirement for having work now is 30 days. Then that's down from 1,250 apps , which is significant amount of time over the course of a year. So those restrictions are now listed. FMLA becomes much more available to the workforce to work forces that to employers that have never even dealt with half a million . I personally had to coach a client who didn't have to provide that from a , because of the amount of employees he has .
Well now he does. And that will lead to, again, mismanagement if you don't do the research, if your HR isn't trained and that could lead to FMLA retaliation claims. One very tricky part of this was that FMLA expansion from the FF CRA came into play April 2nd. The law passed weeks before. So I had questions for employers on, well, what do we do in the interim because FMLA is going to apply to my business in about a week.
So should I consider layoffs before that that gets involved so I'm not having to pay FMLA or there wouldn't be any kind of FMLA interference suits . So it poses a significantly tricky question. And , uh , the legislation came out very quickly and I don't think, aside from the work, you know, firms like mine are doing to try to get the word out, try to answer frequently asked questions. There's not enough guidelines on, on, on how to deal with it. All it is is okay, here's a new poster.
You got to post this up in your , in your offices and now you have to provide FMLA. I mean it's the risks that would trigger EPL are just very obvious
and I would just add to that the act requires employers to rehire or to make sure that the employee's position is available when they come back from leave. So the failure to accommodate those employees in that manner could obviously lead to some EPL claims
for sure. Well , we've mentioned some of the EPL risks that are out there. You briefly mentioned wage and hour issues. There's wrongful termination. What other specific EPL risks should we be looking out for that we haven't mentioned yet?
I would add ADA issues.
Uh , you know, the pandemic could lead to mental health conditions such as stress and anxiety and those could be protected as a, as a disability under the ADA. So if the employers don't make reasonable accommodations, there could be claims. Also, I think you'll see claims age-related claims because the elderly have been identified as a more susceptible group , uh , to contract coven 19 or at least if they were to contract it would be much harder and much longer process for recovery.
So I think they're certainly going to be colorable claims made that determinations for a termination were made to stave off that potential.
Right. Invasion of privacy claims is another area that I think we'll see on the rise. If an employer starts to ask too many questions about an employees being sick , um , and an attempt to keep the virus from spreading or even if you've got a sick employee who is, it comes down with the coven 19 virus and that information gets out in the workplace, that is a serious violation of privacy.
And what are some of the pitfalls that businesses could find themselves in the increase their risk for EPL claims? Like specific things that you guys are seeing that they should try to either avoid or do to not increase their risk?
I would say , um , but I'm seeing a lot, I'm hearing a lot about is how to track hours , uh, when somebody is working from home. So in general with the FLS say the onus is always on an employer to be able to track and log hours . So if somebody is working from home that's considerably different than timecards and punch out and punching in what we're doing, particularly at our firm, the , the non-exempt staff that's working, they are sending emails when they log on and when they log off.
So that's how they're then when they go to lunch. So that's how their time is being tracked.
But it's a lot harder if you, I mean, if you're not speaking to your workforce every single day , um , if you don't have those use edicts in place that says, you know, you must tell us when you start, when you end, that could lead to overtime claims because there could be time that people are working from home that you know is not being monitored because they're not told, okay, you've got to go home now or you have to punch out at five o'clock.
So that could be overtime claims that they're worried about. You know, one interesting thing that I'm seeing is , uh , the amount of hours worked . So if it's work , if, if , uh, if you're not logging the hours you're worked a part time employee could become an full time employee or conversely the opposite. But in, in the, in the uh, idea of part time and full time ultimate employee maybe entitled to benefits under company policies that part time employees are not.
So that needs to be something that employers would be mindful of because they may have to provide certain benefits because doing the math, these employees are now full time.
I would also add to properly document any type of porphyry performance issues. Um , and if you're wanting to terminate an employee, make sure that you're consulting a labor attorney. As we mentioned earlier, there's some classes of individuals who are more susceptible to covert 19 such as the, the older over 65 African American , those with underlying health issues. So terminations can be very tricky right now.
Just make sure you have dotted your I's and crossed your T's before you would go through with them.
What about people who become sick, who worked for a company? Are there issues surrounding whether or not that information gets out?
Again, the privacy issue got HIPAA that you need to be aware of. Just making sure that any type of health issues or health information is not disseminated. Uh, among anyone else that needs to stay strictly between the employer and the employee.
And I would say what's going to be a hard for that, for those privacy issues is if you work in an environment where you have to go back to work or you're in work and somebody you interact with on a daily basis, contracts covert 19, you need to be known . You need to know, you need to know that you've been in contact with something so you yourself can go self quarantine . So the privacy concerns are going to be, there's got to happen there. I guess there is no bright line rule yet, right?
Because it's happening so quickly. But how far do we go? Do we just tell the people that you've been in contact with, do they sign, you know, confidentiality waivers saying, you know, I've been told this person has it. I hereby, you know , affirm, I will not speak to anyone about this. Those are, those are ways to maybe deflect liability and prevent, you know , claims of, you know, breach of confidentiality.
But those are something that employers need to be mindful that they can't just say, Hey, you know, Beth and accounting has covert 19 and then it becomes everyone's business.
So we hear a getting again on this podcast, it's a theme. It doesn't matter what kind of industry we're talking about during this Corona virus pandemic. The communication is very important. And so one of the things we wanted to do on this podcast is, is go over real quick what retail agents can do with their insureds right now during the pandemic. Like what, what kind of communication needs to be happening? What kind of things do they need to be telling insureds to do?
What kind of questions can they expect from insurance? I'll just let you guys talk on that a little bit.
Sure. Thank you. I would suggest that , uh , that retailers talk to their employees or their employers or their insureds about creating if they haven't already done so a policy regarding communicable diseases and the proper response plans for such. Um , I would venture to say most of these employers don't have such a program or such a policy in place.
And I would also say, you know , from the EPL perspective, from a professional liability perspective, review their current EPL policy with them specifically how to report claims. You know, time and time again, we see issues with late reporting because these insurance don't truly understand what constitutes a claim and they don't understand these claims made policies and how critical it is to report claims in a timely manner.
Employ these employers is insurance should know what those new laws are, should be told. Okay. This is what the FF CRA does, how it may apply to you. Now, if you didn't think FLA applied to you before it applies to you now. I mean at a very basic minimum, there should be some sort of dialogue training or even just a, you know, a written blurb , Hey, this is how these new laws may affect you with the FCRA and then, you know , obviously with the cares act , wow ,
the marketplace is changing. It's to change. We've had so much action going on lately. How is, how is the marketplace and the resulting changes that are happening there, how does that affect EPL business?
You know , it was already hardening before we went into all of this, but it is just even worse right now. Um, you know, we've got carriers who are putting crazy restrictions on coverage or I stay crazy from a broker's perspective, probably not so crazy from their perspective, but layoff exclusions , um , are prevalent on EPL policies right now. Um , higher retentions, higher premiums, pulling defense limits so that maybe they don't have the defense outside anymore.
Um, and just getting EPL in general is really tough right now. There are a lot of markets who are pull , pulling out, have pulled out. Right now they won't consider EPL for new buyers. And I recently worked on a midterm request to increase limits and I approached 20 markets and only found one who was able and willing to give me an additional million of EPL due to Cove in 19 .
Yeah. Wow, that's incredible. What other resources are available to help employers? Retail agents right now are , there's some good places they should be looking for information.
At a bare minimum, the department of labor has been very good there . They're turning out information in different languages, notices, things that you need to do. Frequently asked questions. Uh , to be honest, they don't get into the really nitty gritty nitty gritty questions, but that's a place to start. Uh , and certainly, you know, you'd have to put up notices regardless. So , uh , the DOL where you can get those easily, they're free. All that information is free.
You know, a lot of law firms including my own have developed and I'm sure you see on LinkedIn, you know, you know, coronavirus coven 19 tasks forces. Um , you can just simply go on websites are firms websites or other firms and um , there's going to be probably on the main page now information related to COBIT 19, dealing with um, you know, various different industries but specifically employment and the things we just discussed. So, you know, I think that's it .
That's uh , those are two good areas of resource right now.
And Dan , I'm obviously gonna say retail brokers should lean on their wholesale brokers, the relationships they have there . We're experts in our field or specialists in these lines of business and they need to lean on us.
We've got these podcasts as resources, you know, we've got our partnerships with law firms like can all , where we are constantly involved with what's going on our fingers on the pulse of what's going on daily and lean on us and let us help them, let us be an extension of their agency.
So Alison, thank you very much for joining us. We really appreciate you being here today. That's Alison Benda from the CRC Nashville office. And your profile is available on CRC group.com, I believe, right?
It is, yes. Thank you Dan.
Absolutely. And you can, you can look up any of our brokers all across the country. We've got offices nationwide that can serve you. So check out CRC group.com and [inaudible] who has been so gracious to join us. Again, it's been a great conversation. If people want to get in touch with you or your law firm, what's the best way to get some information? Sure.
Um , you can find me on LinkedIn or you can look for me on our uh, law firms website, Wilson elser.com
absolutely. So reach out to [inaudible] . Reach out to Alison , reached out to your CRC group broker. We would appreciate it. Thank you both for joining us today. This has been a great discussion. Yes it has. Thank you. Placing you first bug cash as the situation with the Corona virus develops impacting normal daily life insurance across the country are in a state of uncertainty. CRC group is committed to doing whatever we can to help you and your clients@crcgroup.com.
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