Employment Practices Liability in an Evolving Work Environment | Blog | MMA

Employment Practices Liability in an Evolving Work Environment

October 27, 2021

11/16/21: This information has evolved since publishing. For more recent information, please visit our Vaccination Legislation page where we’ve compiled key resources, helpful employer guidance, and potential solutions to help your organization navigate this urgent and complex topic. 

As the COVID-19 pandemic slows and companies deliberate over the decision to bring employees back to the workplace, remote work remains a prevalent option. According to a February 2021 article in Forbes, 97% of employees don’t want to return to the office full-time and prefer flexibility between working at home and in an office. It should come as no surprise that in order to maintain top talent, this widespread sentiment will impact employers’ considerations of adopting a hybrid model of work.

As our workforce disperses, the way employees interact with one another has surely changed. From an employment practices liability (EPL) standpoint, it doesn’t mean that the risk of workplace misconduct is gone—it simply looks different.

Workplaces with less impact from COVID-19

For industries like manufacturing and construction, among others, whose workplaces have been less impacted by COVID-19 because of continued on-site operations, old risks for “traditional” discrimination, harassment, or wrongful termination still exist. However, pandemic-related issues have brought about new areas of EPL risk that employers should consider, such as:

  • Discrimination based on age
  • Vaccination status
  • Willingness and/or ability to come into the workplace
  • Accusations of a hostile work environment if employees don’t feel comfortable but are required to come in

Workplaces with drastic changes due to COVID-19

For industries looking far different post-COVID-19 such as offices that are nearly empty due to remote work, retail, and restaurants, etc., “traditional” EPL exposures may be decreasing, but new challenges navigating a changed workplace have surfaced. Employers face liability as they answer return-to-work questions and communicate their decisions to employees:

  • What is the stance on “returning to work”? How and when are companies inviting or requiring employees back in the workplace?
  • Are vaccinations being required/recommended? What biometric information is a company collecting from employees?
  • How are companies selecting who is eligible to return to work? Is age, health, tenure, title, etc. among the considerations?

Uncharted territory

Many of these potential COVID-19-related EPL risks may not have materialized yet, but it is important to have a plan in place in the event that one does. We encourage you to reach out to us to discuss possible COVID-19 impacts to your employment practices liability insurance program.