Vaccine mandates will bring an influx of EPL claims
Market Insight 15 December 2021 15 December 2021
Insurance 2022 - the year ahead
The enforceability of mandates remains uncertain with various court challenges and directives from both the public and private sector.
Vaccine mandates are top of mind for US companies right now and employers must be vigilant and act in accordance with the laws set forth, but also be prepared for claims that will likely arise.
The US Department of Labor Occupational Safety and Health Administration’s (OSHA) recent suspension of enforcement of the government’s employer vaccine rule after a federal appeals court reaffirmed an earlier temporary stay of the rule puts the legality of vaccine requirements squarely in the cross hairs of the courts and, ultimately, the issue may have to be decided by the US Supreme Court.
As a result of this uncertainty, many questions linger as to what this means for Employment Practices Liability (EPL) claims and how employers and their insurers should navigate this uncertain time. The introduction of vaccine and mask mandates will bring an influx of retaliation and discrimination claims, brought on by everyone from new hires to longtime employees. Many employers may be reluctant to enforce such policies in the workplace, which is likely to trigger claims by employees that they are being required to work in an unsafe environment.
One concern among these claims will be employees who feel that their employer’s policy, whatever it may be, has had an unfair or adverse effect on their employment due to their vaccination status, and as a result, they have missed out on or were overlooked for promotions or opportunities to advance. Furthermore, there is a concern that there will be an increase in claims from those who have been terminated after being denied an exemption to mandates based on disability or religion. We expect to also see an uptick in claims in the next 12 months in each of these areas. Sure to be relevant to some of these claims are COVID exclusions that are being endorsed onto some EPL policies, and because there is no precedent for applying them and the landscape for enforcing them is fluid and continues to change, there is likely to be disputes and resulting litigation with respect to their application.
Issues surrounding vaccination and mandates are not going away and until these issues are resolved by the courts, claims are certain to arise under EPL policies. The question is, how will employers and their insurers handle this evolving landscape?