The nationwide response to the COVID-19 outbreak has caused a wave of unprecedented social and economic disruption for employers and employees. Legislation and massive government funding for relief programs have passed at a dizzying pace, and more actions are being very seriously considered. This rapidly changing and sure to be confusing environment will make it difficult for both businesses and the workers they employ to understand the implications and requirements thoroughly.
The Families First Coronavirus Response Act was one of the first pieces of federal legislation passed by Congress and signed into law effective April 1, 2020. One of the provisions of this act expands the conditions under which an employee may take FMLA. Other sections expand requirements for emergency sick leave. These are just a couple of examples of situations that will test the abilities of seasoned HR professionals and small business owners with no formal HR expertise alike. Navigating the rapidly changing landscape of regulations while balancing the need to maintain vital business functions will be a challenge. Conflicts and differing opinions are sure to surface.
Companies that have previously not dealt with employment practice allegations may find themselves looking to their employment practices liability insurance (EPLI) policy if and when these disagreements turn into formal allegations or legal actions. Although the concept of EPLI coverage is relatively common, the intricacies of each carrier's policy form are not. On a broad basis, the EPLI policy is designed to defend and pay judgments for "wrongful acts" such as discrimination, wrongful termination, harassment, and other allegations. How each carrier might respond to a claim based on a violation of recently passed regulations is not certain. This is why employers need to consult with HR professionals or legal counsel if they are unsure about a particular action or situation.
Many, if not all, EPLI carriers do offer some form of legal advice via telephone or online chat. These can be beneficial services when you need another opinion or voice to help validate your thought process about a particular situation. Even if you don't have an EPLI policy, as a client of The Koch Co., you may be able to gain access to HR counseling through our Koch Risk Management platform. Whatever method you chose is not as important as the fact you are making a good faith effort to act appropriately.
There may be times that those good faith efforts may not be enough, and you find yourself with an EEOC allegation or suit from a disgruntled employee. That’s the time to notify your EPLI insurance carrier and file a notice of potential claim. As mentioned above, if your particular employment act or decision was taken with good information and intentions, then a defense is likely to be offered. However, there are no guarantees because exclusions such as intentional acts, violations of the Fair Labor Standards Act, and bodily injury, to name a few, could prohibit coverage. In these uncertain times, it critical to consult, whenever possible, with a professional before taking employment actions.