Author, Jeremy Hoolihan, Account Executive, Rancho Mesa Insurance Services, Inc.

The Employment Practices Liability Insurance (EPLI) marketplace has faced a number of factors that are contributing to skyrocketing premiums and deductibles. Many insurance companies are facing the choice of whether to remain in the marketplace or exit altogether. Those willing to remain are then faced with having to consider the following changes:

• Increase their premiums to offset increased claim activity

• Increase their deductibles

• Consider adding exclusions of previously covered exposures

• Consider only renewing existing clients’ policies

• Pulling out of certain business segments such as retail, hospitality, leisure, and transportation which is currently being impacted the most from COVID-19.

Below are some of the main factors causing the hardening EPLI marketplace. As you will see, they vary significantly but combined they have created a perfect storm.

COVID-19

These are unprecedented times with businesses being forced to shut down for months due to COVID-19, employees having to work remotely and our economy seemingly coming to a standstill. Couple this with a significant increase in layoffs, severance packages, furloughs, and unemployment, and we have seen a significant increase in claims filed. By January 2021, the plaintiff’s bar had filed over 1,200 COVID-19 related employment lawsuits. These types of lawsuits have continued to grow each month since the pandemic began.

We have also seen the unemployment rate spike from 3.5% in March of 2020 to 14.7% in April 2020. Currently the unemployment rate has settled to about 8% but this still represents a double digit increase from2019.

EPLI claims often follow large changes in workforce, including reductions, promotions and demotions. Three areas of particular growing concern include:

• Sexual Harassment

• Privacy

• Retaliation

Sexual Harassment

The heightened awareness and increased public intolerance for harassment developed in part from the #MeToo movement has given a voice to people that are now not only speaking out but filing lawsuits against their employer for sexual harassment. This national attention has also altered the legal environment surrounding these types of claims, often leading to much higher settlements outcomes..  Industry wide, the total monetary benefits awarded to sexual harassment victims has increased 68% from 2016 to 2019 according to the U.S. Equal Employment Opportunity Commission.

Privacy

In addition to discrimination and sexual harassment claims, insurance carriers also anticipate privacy-related claims. As businesses begin to reopen, there are new policies and procedures in place that require a Human Resources department to question employees about their personal health, their health history, and their family’s health history. The nationwide Health Insurance Portability and Accountability Act (HIPAA) and other state-specific laws like the Illinois Biometric Information Privacy Act (BIPA) regulates how companies collect, store, use, and share biometric information. With temperature-taking requirements and a certification form filled out, there is a concern that some employees may feel their privacy has been invaded. 

Retaliation

There is also a growing concern that there will be more retaliation type claims relating to an employee’s use of social media. With COVID-19 in mind, employees are already expressing their concerns via social media about their employers’ lack of safety measures or personal protective equipment (PPE). It’s reasonable to consider that if these employees are terminated that they may feel they were retaliated against because of their posts.

Retaliation could also be a result of employees exercising their rights under Family Medical Leave Act (FMLA) or other benefits such as workers compensation or paid sick leave.

US Supreme Court LGBTQ Decision

The Supreme Court ruled in June 2020 that Title VII of the 1964 Civil Rights Act protects employees from discrimination based on sexual orientation and gender identification. 

Previously only 28 States awarded such protections. Now that these protections are law in all 50 states, we will likely see additional claims alleging employment discrimination based on gender identity and sexual orientation.

In conclusion, running a business remains a challenge under normal circumstances. Add in the many side effects of the pandemic and it can feel overwhelming. EPLI-related claims can result in catastrophic financial impacts to a company’s balance sheet. The cost of defending your business alone can potentially put a company out of business. While EPLI premiums continue to rise, so does your exposure to a myriad of claims that fall under this coverage umbrella. Having EPLI in place can mean the difference between absorbing fair and reasonable claim costs or forcing an uninsured business to close their doors. To learn more about EPLI coverage and ways to construct a policy that meets your needs, please reach out to me at 619-937-0174 or jhoolihan@ranchomesa.com.