Placing You First Insurance Podcast by CRC Group

Returning to Work in 2021: COVID & Vaccinations Raise EPLI Liability Questions

March 04, 2021 CRC Group, Kunal Shah, Mark Waldeck
Placing You First Insurance Podcast by CRC Group
Returning to Work in 2021: COVID & Vaccinations Raise EPLI Liability Questions
Show Notes Transcript Chapter Markers

 At the beginning of the COVID-19 pandemic, employers moved quickly to develop and implement remote work-from-home protocols to protect employees. Almost a year since it all began, employers are starting to develop return to work plans. Well-known finance giants, Goldman Sachs, and JPMorgan Chase, are delaying their return after initially attempting to bring workers back near the end of 2020 only to send many workers home again after employees tested positive for the virus. Other large companies including Ford, Google, Facebook, and Target, have also stated that they’ll postpone return-to-office dates until at least summer 2021.4 As restrictions loosen or expire and vaccines slowly roll out, employers that start bringing employees back to the office will be faced with an increased risk of COVID-19-related Employment Practices Liability (EPL) claims.1 Smart employers will proactively evaluate return to work plans from both a legal and insurance perspective to ensure they are protecting business operations and employee health. 

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Dan Wentz:

This is the placing you first podcast. I'm Dan Wentz and his podcast features news and insights from CRCs vast knowledge base of 2000 plus associates who write nexus of $10 billion of freemium annually. And we're giving you insider access to what's happening in our company and the types of insurance we place. This is

Kunal Shah:

the placing you first podcast

Dan Wentz:

today. We're joined by Mark Walden, who is the office president of CRC. Chicago. And he's a member of our exec pro practice group. There's a lot of great things with, uh, financial lines throughout the Midwest there, and also who knows and all Shaw who is returning to the podcast. Again, he's so great. We keep bringing him back. He's a partner at Meyer, LLP, practicing employment, litigation, and counseling. Um, and commercial litigation. So welcome you both to the podcast. We appreciate you guys taking the time to talk to us about a, uh, important subject today is so we're talking about returning to work in 2021. We are finally at the other end

Kunal Shah:

of COVID, uh, in some respects.

Dan Wentz:

And, uh, employees are going to start heading back into the office. I know our, uh, our office has some plans to start bringing back people back a little bit later on this year. And I think that's the way it goes with, uh, most offices around the country right now. Uh, so let's explore the, the risks and the issues that, um, That come from this and also vaccinations to everything that's going on with COVID right now, let's start with canal canal. What risk exists for businesses that are welcoming employees back to

Kunal Shah:

work today? Well, you know, I think the obvious number one risk is exposing employees or customers to the virus, right? Uh, depending on the nature of your work, you could be, you know, it could be just a group of employees that you're bringing back, or it could be, you know, opening up shops where customers or clientele. May frequent. So the exposure to the virus obviously is number one, paramount risk, um, you know, uh, obvious ways to mitigate those risks is do what you've been doing this entire time. Right. You know, encouraged to completely stay home, follow the CDC protocols, you know, system checks, symptom checks, temperature screenings, before people start work, social distancing, barriers, partition, mass sanitizers, things like that. Um, you know, I think when you're talking about risks of maybe rushing, it is, uh, it's twofold. It's, it's going back to normal too quickly. Um, but it also, you know, the risks are, you know, the risks that have been what they've always been. And that's, you know, if you, if you have an exposure situation in your workplace, that'll automatically, you know, put into place. OSHA reporting requirements, right? Uh, you will open yourself up to investigations if people in your office, um, are hospitalized because of COVID 19 and it originated from the, you know, the workplace. So that's obviously the inherent risk there. Um, you know, the OSHA guidelines for reporting are. Very arduous. Um, there, you know, we we've done them on behalf of employers because, um, if you're not truthful or if you, if you forget something, you know, you can be slapped with a fine. So that's obviously an inherent risk. That's always been the risk of employees came back to the workplace. Um, you know, I think other return to work, uh, risk. And I think we'll talk about this a little later is, um, you know, you're going to get that inherent fear, that pushback from employees. Who aren't yet ready to go back to a workplace? You know, they might not be ready to go back to a big metropolitan. Um, you know, if that's, you know, for me, for example, I live in the outskirts of Dallas, but obviously going in Dallas is a lot different than the suburbs where people may have that inherent fear. Of being in places where, you know, they could be, you know, higher exposure obviously, which can lead to requests for accommodations, you know? And, and I think we're going to talk about that later, but you know, um, you may have employees who have a legitimate fear of contracting contract into disease and asking to work from home. I mean, I see that a lot. I see that every day, um, And, you know, can, can, uh, fear of contracting the disease, be a bonafide request for a reasonable accommodation related to disability? No, but you know, it can certainly, uh, lead to a claim out of sheer, um, you know, employee morale issues, employees being unhappy. They have to return our workplace. They might view as unsafe. Yeah. You would

Dan Wentz:

expect after everybody's gotten used to working from home. Uh, that it's not going to be easy to bring them back and have them be okay

Kunal Shah:

with it.

Dan Wentz:

Right, right out of the box. So, uh, that's great. So what about testing? Um, obviously I think employers are going to try to mitigate this and might be looking at testing and requiring. Uh, testing for their employees. Can they do that?

Kunal Shah:

They can. Uh, that's actually, there's actually good EOC guidance on this topic. I'm actually surprised that the EOC kind of put its foot down on this issue and Cloris can definitely require employees to test and, um, Uh, require them to keep testing until they produce a negative test. Uh, the EOC pretty much says you can mandate testing so long it's it's job related to a business necessity. And I don't know any employment place or employer that says, uh, workplace safety is not a business necessity. So it's a very broad, easy standard to overcome welfare of employees as a business necessity. So, um, you can definitely mandate that if for some reason, You see pushback from an employee refusing testing, um, that was that that needs to be treated in the way you treat somebody who, um, is, is, is engaging in some sort of policy violation at work, right? Um, you, you, you write them up, you send them home, uh, and if they refuse to comply with the workplace expectation, you know, that can be, uh, can be seen as a voluntary quit or resignation or grounds for termination. So even if, uh,

Dan Wentz:

employees are not showing symptoms, they can still require testing.

Kunal Shah:

Yeah. Yeah. I mean, if, if you know, one, it one it's, you know, it, it seems. Kind of far-fetched because most of the time, most employers will do temperature checks and say, we're good. But, um, there are some workplaces that are requiring or, you know, there's some, like if you fly right, you need to produce a negative test. Uh, if workplaces want to go that extra distance and they're willing to compensate the employee, you know, reimburse the employee for the test, uh, not obviously, you know, take away any time from work or if they're, you know, if they're forced to go. You know, out of work to get a test or whatever, you know, not dock them for the time, but, um, yeah. You know, employers are well within their right to do that. And, um, you know, even if you're not showing symptoms, you know, there's obviously enough literature out there that says you can carry the disease and, and never show a symptom. So, um, you can still spread it too without showing symptoms. So I think. You don't see this a lot. You don't see requirement of a negative test. Um, even if they've never had COVID, you know, I know personally, you know, and workplaces that I'm dealing with it's the person had COVID and they can't return until they produce a negative test. That's more the norm, but yeah, if you're an employer that's just requiring a negative test before you come back. I mean, Seems to be a little feudal because you can certainly be exposed the next day after the negative test. But yeah, I mean, it, it, this, this requirement of a negative test is mostly done in the situations of somebody having symptoms or just having had COVID-19. What about the

Mark Waldeck:

test results themselves and how they applied back to the employee and that employee's right to privacy. How do we, how do we address that?

Kunal Shah:

Yeah. You know, uh, and there's the, the see, um, and, and, and, you know, the, the ADA, um, they've come out with, uh, a lot of guidance on this issue, right? Uh, for example, the temperature screening was, uh, Was basically considered a physical examination. That was, uh, something that you could not do before. COVID-19, uh, now again, because of this business necessity, uh, allotment, you are allowed to temperature screen, and you are allowed to request a negative test. Um, you are, so you also are allowed to ask people how they're feeling, whether they're exhibiting symptoms. Um, I dunno if you guys seen those questionnaires that a lot of workplaces have. Uh, you have to fill it out sometimes every day. So yeah. You know, that, that, it's a good question. Um, and, and it's, it's pretty, it's pretty, um, new and novel that we're dealing with. Uh, employers being able to really ask personal questions about, you know, do you have a temperature? Do you have anyone in your family experiencing sickness? Uh, in normal times, all of these would be. Bard a hundred percent there wouldn't be, there'd be no business necessity and asking somebody about their medical condition, but because we're dealing with a global pandemic, the EOC, um, CDC, and several other guidelines, which will kind of point fingers at each other, don't say, no, you know, it's okay. Uh, you know, these are, these are wild times, so we'll, we'll let these things slot. Great question, Mark.

Dan Wentz:

Uh, what about infections are they covered under worker's

Kunal Shah:

comp? Yeah, I'm an employee. I knew at least I believe so. Here in Texas, I'm an employee most have contacted it at work, right? I mean, it's, it's, it's obviously, you know, just like any other occupational disease has to be injured, a contract through work, um, or as a result of the employment, if they were out in the field and they contracted it or whatever it may be. Um, and, and obviously the employer has to be participating in some sort of workers' compensation, um, plan or policy. Uh,

Dan Wentz:

okay. So can employers make their employees return to work? Force them to,

Kunal Shah:

Oh yeah. Oh yes, this is, yeah. This is, uh, what we're dealing with. Um, This is something we've been dealing with since late summer when some employers were like, you know, w we need you back. Uh, there are a lot of businesses that you can't work remotely, right? You, you just, you can't do it in, in the retail retail world or whatever it may be. Um, but yes, they can, uh, force people to return to work. Um, you know, this then brings up. Okay. Well, if there are concerns about if they're legitimate health concerns, you certainly can not require somebody to come back to a workplace that is known to be unsafe. And, and, you know, there's a, you know, COVID outbreak going on before our last, um, you know, before the last conversation I was, I was, uh, Researching this and actually buy it and ask for guidance from the department of labor on this in January on this exact issue, in the context of employees, fearful of going to work, going back to an unsafe workplace. And they're looking, he's looking for some sort of guidance from the department of labor. The reason for this is if there is some sort of bonafide reason to have a fear of going back to an unsafe workplace, the employee may be able to get unemployment insurance. Uh, now again, this is a very rare. It's very rare that an employee, a placement employment is highly unsafe and then it's just, you know, a place where you contract COVID right. Um, that's, that's not going to be a place of employment. That's going to. You know that that's going to change, right. That, that place of employment's going to clearly, you know, go through some sanitation. I've had, I've had clients who have had outbreaks and they shut everything down and they wait two weeks and they bring everyone back to work or they bring people back to work in waves. You know, that that's, uh, that's, that's the exception, but in general, if you're dealing with a workplace, um, like any of ours, you know, an office space, um, and, and it's, it's time for an employer to make a decision as long as there's no. You know, local ordinance saying there's capacity restrictions or okay. These businesses can't bring that, bring their employees back. Um, you know, yes. You know, employers can require employees to come back to work. Now, uh, there are. Some cases where you have a certain individuals who have medical, you know, underlying medical conditions, um, where they're extremely susceptible of catching sickness and, you know, dying from it. Um, I had a, I had a case where, where, you know, an individual. Um, had a blood disorder and, you know, the doctor was like, this guy should not be going out. You know, definitely not going to the place of work because you know, he's very settable catching any illness, especially one as, um, fatal as COVID-19, you know, so he had a, he had a bonafide. Written medical documentation saying, you know, this guy needs to re you know, work remotely and his case, he was able to work remotely. The job was, you know, available to him remotely. Um, but conversely, if you're somebody who's, you know, you can't do the material functions of your job from home. Um, Starbucks, barista, right? That's always the example I give you are allowed to terminate that person. If they can't do the, if they can't do it with any kind of accommodation,

Mark Waldeck:

are those new rules that the government is setting now? Meaning when can you force an employee to come back into the workplace? Are we creating a dangerous precedent for other unrelated? Maybe we have a bad, violent flu outbreak two years from now. And the flu kills a lot of people. They only differences is that we've been around it longer, but I'm sure there's a lot of historical numbers that show that the flu is pretty lethal to a lot of individuals. Are our employers going to attack that issue differently now going forward, given this precedent for COVID. That's

Kunal Shah:

such a great point, you know, and before COVID, the flu was not even considered a disability, right. It was a transient nature. You knew it was going to go away. It wasn't considered a disability that would require you to work from home or whatever it may be. Now, obviously, you know, when we're through with this thing, like you said, there are, I remember, you know, within the last decade strong cases of the flu, right. And it was reported and then people were really, you know, there was, you know, the numbers were higher. Um, and, and nobody had ever, you know, yeah. People took sick days, but this conditioning, you know, remote work through the flu season, I I've I've thought about that. And I've had employers ask. You know, the generally what I tell employers is you, you kind of have to remember what did you do when you had a flu, right? You, you made sure employees, so you had any concerns, had the ability to go wash their hands and you had a clean environment and sanitizers, um, that's what people used to do before. COVID right. I mean, you've washed your hands, right. Um, but will this open up Pandora's box? Yeah, I totally can envision that. And I think, you know, any sort of. Seasonal sickness, you know, maybe even allergies, uh, anything that has the ability of, uh, you know, compromising your immune system for a short period of time. I think employers are going to be dealing with the pushback and you're going to be dealing with crafty claims that will use this as a precedent, without a doubt.

Dan Wentz:

So let's talk about timing. When should employers be, uh, you bringing people back, when do you think is, you know, like how do they figure this out? Because obviously this is up to every business on their own to, to figure out and figure out the way that is going to keep them, uh, you know, as least liable as

Kunal Shah:

possible. Yeah. Yeah. You know, um, there's no real answer, right? It's it's, there's no time table. Um, you know, it, you, I think what employers have to do is. Think about the numbers, right? You, you look in your market and you say, okay, well they're doing more testing or doing more vaccines. Okay. Let's look at that. Are the, you know, are the cases going down? And then you can use that as a timetable. Um, you can, uh, use any kind of governmental ordinance of limitations at a timetable. You know, for example, New York city just opened up. You know, dining in schools, you know, dining 35% indoor in schools are going to be opened up soon. So that could be a benchmark. Um, but you know, we've seen this, right. You know, you do anything too quickly and you're going to end up paying for it. Uh, you could end up paying for it. It's very different this year than let's say last spring or. Summer because we've got the vaccine and it seems to be rolling out somewhat quickly now. Um, you know, so w when is the perfect time? I don't know. No one knows, you know, I, I think the best thing to do is if you have employees who have shown you, they can work remotely and are open to it working remotely. It may not have, you know, kids running around and they're okay with it. Allow employees maybe to make the chance so they can mitigate the are less than the amount of people in the office. Right. If you've got a workforce at 50 people, but you know, on a floor and the 20 of them are fine working from home. You know what, let them work from home. You know? Cause then those 30 people will have a bigger space to operate in and won't have to fear, you know, five people in an elevator or whatever it may be. So, I mean, we're not out of this yet. I think people need to, we're close and it's exciting. And when the weather's nicer, you just want to go out there. Right. But, um, Uh, I would say if you can mitigate the risk of returning everyone to work and it doesn't affect your productivity or bottom line, then, then keep people remote. Okay. So that's all

Dan Wentz:

the legal end of it. Uh, let's talk about the insurance a little bit here, Mark. Um, so how are carriers looking at this right now? I mean, obviously they've got a, a cautious eye with everybody about to return to work, right? There's a lot of risk out there. Um, How's that, uh, how are they viewing it? What are you hearing? And, and, you know, what are your thoughts on that? We've

Mark Waldeck:

yet to see direct or explicit exclusions to take away coverage related to a COVID type event. So in a perfect world, I think they'd be already attaching them. We've not seen them yet. Really. Um, I think the first communicable disease exclusion I've seen appeared after one, one, but it's, I've only seen it on one or two policies and those were. Very case specific, they weren't across the board. Um, and even then how, um, robust is that exclusion and if it were challenged in a legal setting, would it, would it hold up? I don't know. Um, so I think that's a big issue in the marketplace is the carriers would love to be able to try and put a fence around the exposure or they just haven't figured out how to do it. I think the more likely reaction will be probably a supplement. If they have to position. They'll try and do it through a supplement. So there is no exclusion that can be tested, uh, uh, via good, good results or bad result at the end. Um, if you put in a sub limit, then you pay out a couple hundred grand and you're done, and it's a, it's an easy way to sidestep the whole issue. So. But I, I think to digress back to what we were just discussing the whole idea of bringing employees back in, you have not only the physical aspect, but I'd call the emotional side, which canal sort of touched on. So is the emotional distress and anxiety that comes with that demand that return to work, order enough to trigger an EPL event. Um, I don't know. Uh, I'm throwing it out there since I have a lawyer on the, on the five.

Kunal Shah:

No, for a fact that you're going to see, um, I have a fear of contracting the disease. I have documented anxiety. Anxiety is very well-documented now it's it's, you know, people take people, treat for people, you know, sequence for it. Um, and you know, there's case law that says that's a, that's a disability under the ADA. So that will trigger ADA claims. Right. You know, if somebody is terminated because they refuse to come into work because of their fear of COVID. Um, and an employer says, well, you know, that's, that's not a real disability or questions and disability, or maybe, um, you know, the paperwork is not enough for the employers liking, you know, or maybe they don't even engage in their interactive. Process. Um, yeah. You know, that can implicate that as well. Um, you're going to see a lot of that debt steer that, you know, I can't sleep at night because I'm really fearful that I'll inject myself and my family and my employer. I asked them to work from home and I've been working from home this whole time. So clearly there's no undue hardship to the employer to allow this to happen just a little bit, you know, allowed it happened a little bit longer. So therefore, you know, I'm being discriminated against because I have anxiety. So a hundred percent. We will see those claims. Um, for the next two years, I know what's going to happen. And then you're going to have the legitimate claims where, um, you know, somebody may have real documented, uh, you know, like with the blood disorder I talked about or anything, uh, you know, disease or underlying condition where they really just kind of kept at home and away from, uh, even the possibility of it. Um, it's, it's interesting because a lot of employers are trained and the interactive process and, and providing reasonable and reasonable accommodations for disabilities that they can see, or that are obvious or, you know, okay, well, this person's going through, you know, kidney failure, you know, obviously we're going to accommodate them. Right. Employers, you know, there's someone there sort of trained to identify. Real disabilities in the traditional sense of something where somebody is clearly sick or offered or impaired. Um, this is going to open up a whole different set of circumstances where people will have a legitimate fear of infecting themselves or their families. And, and, um, you know, this is something that they probably can treat for and dare within, you know, with the doctor for anxiety. Um, so that that's going to happen. And I was thinking about, you know, it's, I don't, I, there's no way to carve up those claims because they're all ADA, right? I mean, it's, it's, those are your, those are your, you know, kind of, you know, ADA and race, right. I mean, when it comes to EPL claims, those are, you know, like EOC statistics always has those as you know, pretty high on the

Mark Waldeck:

vaccination front. Is there any reason why an employer cannot force there? Workforce that's returning to all be a hundred percent vaccinated. And then if we do make that mandate, does that again, create a precedent that next year I'd slow season. You have to get a flu shot before you can come back.

Kunal Shah:

Yeah. So one, you know what employers are allowed and there's, there's actually, you'll see guidance on this now, too. Employers are allowed to mandate the vaccine and a lot of people take a step back and say, well, that seems really intrusive. Again, it's business necessity. We're we're, we're, we're living in unprecedented times. Uh, the, the, the exceptions there are, um, You know, if somebody is allergic to the vaccine obviously, or the vaccine would cause them harm that could potentially kill them or something like that, those kinds of medical conditions, there are, you know, you can not compel somebody who has legitimate disability, uh, or has a condition that can be worsened by the vaccine. It's yet to be it's actually yet to be seen. Um, there, there aren't many, you know, I know there's a good research out there that people on. Some therapeutics for cancer or, you know, uh, major diseases, uh, should not begin the vaccine. Um, and then there's this, you know, another gray area of religious beliefs, uh, you know, there are certain religions that, uh, don't allow you to get vaccinated. Um, so then employee, you know, it's already a out as set by the EOC that if the employee has a bonafide religious belief, uh, then they also don't have to get the vaccine and they can. They, you know, their employers need to accommodate that as a, you know, an exception. So, um, first, yeah, I mean, I would say those two, you know, religious and medical condition, those are the exceptions to a mandate for a vaccine for an employer. Um, but again, yeah, like you said, I mean, is this Pandora's box, is this going to be, is this going to go into flu vaccine? Right. Hey, you know, w w we just want to keep everyone safe. How do we know whether it's the flu or COVID right. I mean, You know, uh, there's enough literature out that it said COVID my, my last forever in some form or sentence. Right? So what's what's to tell your employees not to get the flu vaccine out of you, do you figure that one? It's it's gotta be a mess. Yeah, the whole thing has been

Dan Wentz:

a mess. Let's be honest.

Kunal Shah:

Uh, I mean, it really has

Dan Wentz:

a Mark, so, so what are you, what are we talking to agents about now? Like how are we covering this with our agents and how are we counseling them as they move forward?

Mark Waldeck:

Um, well, I always tell them, uh, get your, get your legal advice upfront early and often since they're the ones that are really going to drive the bus. Um, w what we've been encouraging, all of our retailers to do is to get those EPL quotes early, and then, uh, hopefully lock them up early as well. So that is the market continues to shift and move probably in a negative, uh, at a negative rates, right against us, uh, that we already have terms and conditions that are more favorable. Um, so I think waiting to the last minute is never good, even in a soft market, but in a hard market, definitely. You don't want to be doing that. Um, I would look carefully at probably the, um, demographics of your workforce. Not that there's anything you can do about it, but if I were an employer and I was getting ready to buy some. Insurance for any number of reasons. I I'd probably want to figure out who fits into what buckets, how many people do I have that need reasonable medical accommodations? How many people do I have that meet a certain demographics that are more high risk and it could be religious city or could be just age. Now you're not using that as a way to discriminate against your workforce, but you're using it as a way to sort of handicap what your exposure is now, because if you have a. Elderly workforce. There's a better chance that you can't bring them back safely. And or if you do, you run on much greater risk that something bad will happen. So I think those are more risk management discussions. So as the broker, I have more risk management. Uh, levers to pull here. Then I do, uh, um, crafty brokering. That's going to find a better outcome. Uh, the market's going to sort of find that a high watermark where can, uh, that equilibrium will be, uh, and it may involve, uh, exclusions down the road right now. We're, we're, uh, sailing through it without, but that could change quickly.

Dan Wentz:

Is he a return to work? Is that covered under an EPL policy?

Mark Waldeck:

Normally? Yes. If he, if you're required, if you're making it a condition of someone's employment and they refuse to return, that can result in, uh, um, some type of VPL related action. Uh, that you took my job away, or you denied me future job opportunities, salary bonus promotion, because I was viewed as uncooperative and would not return or wouldn't accept the vaccine, et cetera. That's where I see the EPL claims coming in. Um, and I think the bigger question for, uh, you know, future debate is, are we going to see one-off claims? Are we looking at large class actions? That's what I, that's what keeps me up at night. Cause it wouldn't be that hard to manufacture the same pleading over and over again. Okay. Uh, I'm the plaintiff's attorney get me that employee census. I'm going to call every employee over the age of 50 good chance to have some type of health issue. Um, and I'm going to try and sign them up. That's what I worry about. Uh, now suddenly we're not fighting one case we're fighting maybe a group of a hundred or 150 plaintiffs.

Dan Wentz:

Yeah. And canola, is that what you're, you're thinking is going to happen with the litigation or what are you, what's your feeling on

Kunal Shah:

that great point? Because I think you may see, um, also in the future, you know, failure to hire claims. Uh, kind of predicated on the same thing, you know, it's a common topic to talk about, you know, uh, in an interview. Yeah. You know, like I had COVID or are you all, you know, you know yeah. You know, I'm dealing with an elderly person in my home, blah, blah, blah. Something that could implicate, you know, a potential red flag for an employer, you know, okay. This person is, is elderly, or this person is more susceptible to getting sick. Uh, and they don't hire them. Right. And, or it's perceived by the candidate that the, they weren't hired because of their condition, uh, you know, predisposition to maybe having to go on lockdown. If this happens again or, you know, work remotely completely. If this happens again, uh, conversely, they may say, Hey, you know, I'm, I'm a job applicant, but I need to work from home. If I, if I get, if I'm offered this job, I need to work from home because I have this condition and maybe they don't get it. You know, then you have a claim of, well, I didn't get the, I didn't get the job because I'm more susceptible because of my disability or whatever it may be. Um, and I, I can see that happening, uh, you know, uh, whether they're meritorious claims or not. I mean, it's an easy claim to make, if at all, something like that is discussed in, uh, the terms of employment or contracting or, you know, the interview.

Mark Waldeck:

And I think the documentation around all that's really important because, uh, the underlying claim is going to be, you discriminated against me. You denied me that promotional opportunity, or you didn't even offer me the job. I was the applicant. So they're going to have a lot of, um, allegations in that complaint. But the new one that we're now layering in will be something that's got a COVID spin to it. And I don't believe the courts are, uh, equipped to deal with them just yet. So I think at the end of the day, maybe those judges will look at it. If it's litigated and come to the conclusion that this is really a failure to hire or a failure to promote. And yes, we have a account in the complaint that involves COVID, but it's really not a COVID case. Uh, I, I don't know how the judges are gonna sort through those, uh, suits when they find their min, when it hits their desk.

Kunal Shah:

I think it's going to, I think that's a brilliant point. You know, there is no precedence on this, right? There's, there's nothing there's no, we can't look back on the last one. Right? Cause that those cases didn't exist. So it's going to have to be judges in that district or in that circuit banning together and saying, this is how we're going to deal with these claims. We were going to either deal with them the way we always dealt with ADA claims or, you know, are we going to consider COVID like the flu. Where, like I said, certain, certain circuits, like the one I'm in does not consider the fluid disability. So, uh, maybe they're going to do that and maybe we're going to take a hard, fast line there and, uh, you know, I'm sure, uh, either way they decide. People are going to be unhappy. Right. It depends on like we've learned. Um, but it depends on, you know, the, the, in the circuit or whatever it may be. But yeah, it's going to be interesting because we're going to see the law being made. Uh, you know, probably unfortunately when it's too late and the claims kind of dissipate. But it's got to happen. Uh, so

Dan Wentz:

a lot of great stuff here. Did we miss anything? Is there anything, uh, Mark specifically you, is there anything you wanted to hit that we didn't hit?

Mark Waldeck:

I just think that no clients should be making any sudden changes or decisions without a documented legal advice, um, that everyone's thought through. Because, um, every action will have a reaction and, um, you you're trying to do the right thing, but in, in potentially accommodating one individual, you're putting the rest of the workers, uh, in the line of fire. So, um, those are really tough calls to make. And I don't think an HR department should be left alone to make them because, um, they're going to find themselves in the middle of a lot of complaints. So at least if we've documented it and carefully gone through the steps, we have a chance to defend it and move on.

Kunal Shah:

Yeah. And in this age of the remote work and the, uh, the zoom calls, um, uh, it's, it seems to me that people are using their email more. So that's creating more of a paper trail. Um, but you know, there, conversely people could just be relying on phone calls to have these conversations and it is so paramount to document. Memorialized conversations, uh, whatever, you know, I tell my clients, you write it down on a piece of paper or email it to yourself, just so you capture that moment in time. Because when that suit or charge comes six to 12 months from now, you have captured that moment in time. And that is the best evidence. Piece of paper will always be the best evidence and an employment claims. You know, you are only as good as your documentation.

Dan Wentz:

That is a great point. I think that's a good place. Send it to Kunal, Mark. Thank you very much for, uh, joining us today and granola. I always like to do this, so everybody knows that they can get ahold of Mark Wright and find them on the CRC group

Kunal Shah:

website. And, uh, if you a specific year,

Dan Wentz:

if you're in the Midwest region, you're looking for someone to help you out with executive professional liability. Mark is there Martin? Help you out as well as our entire network of brokers, but, uh, Kunal as well, canola maybe, uh, Quickly, give us a little, little information

Kunal Shah:

about you. I call it the plug. Give us the plug

Dan Wentz:

for what

Kunal Shah:

you do and how you help people. I, your everyday job when you're not podcasting. Well, I'm not podcasting I'm. I specialize in employment litigation claims, uh, claims defense claims, mitigation counseling. That's generally the, the that's the, the beacon of my practice. Um, it always. Bonds into, you know, commercial litigation and stuff. Once I've, you know, dealt with clients on, on issues. Sometimes they have contract disputes and things like that. But, you know, I think for me, my most, uh, you know, my claim to fame is my ability to try to teach clients and employers how to mitigate. Uh, loss and avoid claims. Uh, this employment is that one type of law where if you've got good HR, you got good policy. Do you have documentation in place? You know, that that's where you can actually save, uh, and, and mitigate potential disaster. So that's what I do. Um, I work at a Dallas Meyer. LLP is the law firm. I'm a partner there. Um, find me on LinkedIn, Google me. Um, but yeah, that's what I do. That's my plug. Okay, great.

Dan Wentz:

Appreciate it. Kunal and appreciate it, Mark. Uh, hopefully this won't be the last time we talked to you can all we'll, uh, check back in with you later. I'm sure we'll have more questions about COVID. Is this progressive?

What risk exists for employers that are welcoming employees back?
Can employers mandate tests for employees?
How do test results play into employee's right to privacy?
Are infections covered under workers' comp?
Can employers force workers to return to work?
What dangerous precedents is the government setting now with regards to COVID-19?
When is the best time to ask employees back to the workplace?
How are carriers treating the return to work risk?
What should agents be thinking about with the return to work?
Does your EPL policy protect you under a return to work?
What's going to happen with litigation moving forward?