Many in-house attorneys fail to purchase Employed Professional Liability Coverage to protect themselves against potential lawsuits. Even though most claims are brought on by clients, employed lawyers are also subject to suits from third parties, such as employees, shareholders and government agencies. It is imperative that a successful organization and its legal staff recognize their real legal risks and then purchase coverage to protect against those risks.

Risks Facing In-House AttorneysThe following are just some of the many risks that in-house attorneys regularly face:

  • Attorneys at private companies face exposures when performing contract negotiations, giving advice to Human Resources professionals, assisting with mergers and reviewing contractual language.
  • For public companies, Sarbanes-Oxley (SOX) increases potential exposure—for publically-traded companies only.
  • Since electronic information is discoverable and recoverable, it must be stored and preserved just like paper documents once were. In-house attorneys should work with IT professionals to ensure compliance with this rule.
  • Clients may sue over a contract that did not work in their favor in which the attorney had a hand in writing.
  • Termed employees may sue the employer and name the attorney for negligence.
  • Attorneys are at risk when performing moonlighting services or pro-bono work.

Insurance Protection— To protect against these risks, it is wise to purchase Employed Lawyers’ Professional Liability Insurance coverage, [Employed Lawyers Coverage]. Typical policies may feature the following:

  • Protection from demands, suits or proceedings for damages or injunctive relief
  • Policy may be written as either a “claims made” or “claims made and reported,” and a “duty to defend” or “non-duty to defend” basis
  • Responds to licensing proceedings for in-house attorneys to practice law
  • Deals with compliance for SOX
  • Provides defense against claims alleging wrongful acts
  • Wrongful acts and claim definitions are expanded and broad
  • Extends to pro-bono or moonlighting work done by in-house lawyers
  • Includes full-time on-staff attorneys and contract and independent contract lawyers and support staff members
  • Advance of defense costs, even if allegations are found to be groundless
  • Coverage extends globally
  • Coverage for non-client claims
  • Coverage for SEC and regulatory claims
  • Punitive damages coverage
  • Covers claims from coworkers that arise out of the attorney’s work at the organization
  • Covers costs for claims brought by the employer, board of directors and officers

In-house counsel should make sure they are protecting themselves from risk while they work to protect their employer from risk. Contact AHERN Insurance Brokerage to learn all about our insurance solutions for your business today.

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This Coverage Insights is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.  © 2011 Zywave, Inc. All rights reserved.

 

Lawyer’s professional liability coverage for attorneys and law firms in today’s business climate is a necessity, and in some cases is legally required. Although the overall number of legal malpractice insurance claims is leveling off, the number of large legal malpractice claims is sharply rising. Every attorney malpractice insurance provider anticipates paying claims in excess of $50 million every year. It is imperative that attorneys and law firms recognize emerging legal malpractice risks and purchase coverage to protect against risks.

 

Risks Facing Attorneys and Law FirmsAttorneys and law firms must face these risks relating to professional liability:

  • Attorneys and law firms face exposures when performing any professional legal services, including giving advice to clients and assisting with legal matters, performing notary public or title agent services and giving investment advice.
  • New technologies such as digital document storage, electronic filing of documents and mobile technology may pose serious cyber liability risks.
  • Prior acts of a law firm or individual member, including employees, may trigger risks when attorneys and/or their employees move into new positions with different law firms or go into solo practice.
  • Practicing in areas of law which may be new or unfamiliar to an attorney or law firm may be necessary in today’s economy, but it produces risk.
  • Attorneys are at risk when performing moonlighting services or pro-bono work, or even when giving “cocktail party” advice.
  • Attorneys may face exposure when pursuing other business opportunities with clients, or when acting in a dual capacity, such as an officer or director for a client’s business.
  • Attorneys and law firms may face risk in a number of general areas, including workers’ compensation, advertisers’ liability, reputation management, discrimination, claims brought by regulatory agencies and real estate claims.
  • Even changing insurance policies can carry risk, since policies can be worded slightly differently, or may contain a “prior knowledge” exclusion affirming that the attorney or law firm is not aware of any potential claims.

Disclosure of Liability Insurance— The American Bar Association (ABA) Model Rules of Professional Conduct serve as the model for state ethics rules; states often adopt these rules as their own. The ABA Model Court Rule on Insurance Disclosure requires that a lawyer disclose whether he or she is currently covered by professional liability insurance to the highest court of the jurisdiction, and that such information be made available to the public. The purpose of this Model Rule is to offer prospective clients the ability to make an informed decision when hiring a lawyer. More states, such as California, New Mexico and Pennsylvania, are requiring the same or similar disclosures of liability insurance status to prospective clients in their states. One state, Oregon, actually requires lawyers to carry professional liability insurance.

Insurance Protection— To protect against the many risks facing attorneys and/or law firms, as well as to satisfy any lawyer liability insurance disclosure requirements, it is wise to purchase lawyers’ professional liability insurance coverage. While there are many coverage options available, typical policies feature the following:

  • Protection from demands, suits or proceedings for damages or injunctive relief
  • A “claims made” or “claims made and reported” policy and a “duty to defend” or “non-duty to defend” basis
  • Defense against claims alleging wrongful acts (wrongful acts and claim definitions are expanded and broad)
  • Extensions to pro-bono or moonlighting work, or “cocktail party” advice by lawyers
  • Advance of defense costs, even if allegations are found to be groundless
  • Coverage for non-client claims
  • Arbitration of a coverage dispute between the insurer and the insured
  • Punitive damages coverage, or coverage of fines, statutory penalties and sanctions
  • Limits on deductibles, or deductibles treated on an aggregate basis

Limiting Liability— There are more ways to limit your liability apart from Professional Liability Insurance, such as the following:

  • Disclosing requested information in the insurance application and submitting the application well before the coverage date
  • Documenting the processes used to carry out professional responsibilities
  • Committing to loss prevention and using risk management services
  • Adopting and implementing malpractice prevention measures such as office management policies
  • Using effective calendaring and docket control systems
  • Using well-defined fee agreements with your clients including written documents to confirm the attorney/client relationship
  • Using an electronic conflict of interest search system
  • Practicing in the area of law in which you have experience, and appropriately supervising junior attorneys and support staff
  • Using peer review as part of your quality control procedures

Some of the benefits of attempting to limit your liability include lower professional liability insurance premium increases and avoidance of nonrenewal notices.

We Are Here to Help—All attorneys and law firms should make sure they are protecting themselves from the ever-increasing and emerging areas of malpractice risk by purchasing legal malpractice insurance and employed lawyers coverage. Since there is no standard policy, especially in today’s business climate, a knowledgeable agent is invaluable when purchasing professional liability coverage or when changing policies. We understand your business and can help design policy language to meet your unique needs. We can also help you obtain the most cost-effective policy available while providing the protection you need. Contact us here to learn all about our customized insurance solutions.

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This HR Insights is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. © 2020 Zywave, Inc. All rights reserved.

 

Under a new law, California is bringing back the state’s COVID-19 Supplemental Paid Sick Leave — with some big changes. California employers with more than 25 employees must provide up to 80 new hours of supplemental paid sick leave for specific COVID-19-related reasons.

Employers must start providing this new leave on March 29, 2021, so they will need to get up to speed on this new law quickly.

Click here for more details and our full HR Compliance Bulletin.  You can also reference the Department of Industrial Relations FAQs and the mandatory workplace poster for further guidance.

Your client won after being sued in what she believed was a meritless case. Her defense fees were high. She wants you to sue her former adversary and his lawyer for malicious prosecution.

Think long and hard before taking the case. Malicious prosecution is notoriously hard to prove – the probable cause standard is low and malice difficult to prove. Study the elements of the tort carefully. Explain to your client – in writing –the challenges she will face. She will probably draw an anti-SLAPP motion, which will likely be granted. The other side will then recover its reasonable attorneys’ fees and costs in bringing the motion (and fees on appeal if the ruling is affirmed), which will be substantial.

Lawyers who do not educate clients about these significant risks often next find themselves as defendants in malpractice cases, by clients who justifiably ask, “Why didn’t you tell me this would happen?”

Written By: Daniel Hager, AHERN Corporate Counsel

Daniel W. Hager is Corporate Counsel to AHERN Insurance Brokerage and has spent his career practicing in the fields of lawyers’ professional liability, risk management, and legal ethics.

Let’s face it, the past several months have been rough on everyone. COVID-19 has radically disrupted our everyday lives, changed the way we do business and drastically increased the number of times we all say “strange” and “unprecedented.” One group that’s been thriving in the COVID-19 world, however, are Cyber Criminals. With the rush to implement “work from home” protocols, security has by and large taken a back seat to operational survival and Cyber Criminals have positioned themselves well to take advantage of this new reality. Poorly configured remote desktops, home “Wi-Fi” networks, a host of new applications and employees forced into the strange new land of remote working all add up to a perfect Cyber Storm. Luckily it’s not all gloom and doom and there are things you can do to help make your firm more resilient to Cyber Attacks.

As we take a closer look at Cyber Risk, it is helpful to consider two questions when thinking about these threats:

  • Do you have a Cyber Incident Response plan?
  • Will you survive a Cyber Attack?

Our friends Mike and Ben will make cameos later on to illustrate the importance of these two questions when determining your firm’s resilience in the face of Cyber Threats.

A good place to start is by examining “What’s at Risk” for your firm. Typically this can be broken down into three categories: Data, Disruption and Dollars.

Data

a) Corporate Data: Every law firm is different, which means the type and volume of information will vary greatly from firm to firm. Personal Injury attorneys may have sensitive health information and medical records, M&A attorneys may have sensitive deal information, real estate and trust attorneys may have sensitive financial information in their files, etc. Think about the information your firm collects, stores and processes.

b) Employee Data: Regardless of what type of law you practice, every firm has employees. Think about all the information you take in when onboarding an employee: Name, Address, Phone Number, Social Security Number, Bank Account information for Direct Deposit, background checks, etc. As an employer it is your legal responsibility to protect this information.

c) Data in Transit: Data is at Risk while it is on your firm’s computers, while it is in transit (faxes, emails, texts) and finally, when it resides on a third party’s network. Many organizations believe that by utilizing a third party to store information they are absolving themselves of all responsibility for what happens after the transfer. However, the truth is much more complicated. Data Privacy Law states that the owner and/or collector of information maintains responsibility for that data, and the liability cannot be transferred via contract.

Disruption

While the bulk of the discussion regarding Cyber Risk has historically focused around Data Breaches, (with good reason: they’re dangerous and tremendously expensive to deal with) the mass proliferation of Ransomware has now catapulted Business Disruption to the top of the list for concerned firms across the world.

Dollars

Pretty straightforward. Cybercriminals are after your money AND your clients’ money.

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Now that we’ve identified “What’s at Risk” for your law firm, let’s dive into “How Breaches Occur.” There are three main Cyber Threat Vectors: Outside Attackers, Insider Threats and Third Party Incidents.

Outside Attackers

Hackers. Typically depicted in a hoodie and gloves in a dark room (not ideal for typing), Hackers deploy malicious software, commonly referred to as “Malware,” in order to corrupt legitimate computer code for the hackers’ own purposes. A few different types of outside attacks are:

a) Ransomware: Ransomware is a specific type of malware that is designed to encrypt key files and/or systems, with an accompanying ransom demand in order to provide the decryption key. The newest and most costly form of Ransomware in the Cyber world today is called “Maze” Ransomware. A new twist on Ransomware, the group behind Maze, exfiltrates sensitive information, publishes the name of your firm online, then demands a ransom payment which (supposedly) guarantees that the Cyber Criminals will not publish all of your sensitive information online.

b) Keyloggers: Keyloggers are a type of Ransomware that when downloaded (via an errant click on a website, email attachment, etc.) quite literally logs the key strokes of your computer as you type. Keyloggers are typically used to pick up usernames and passwords which can then be used across various networks to inflict harm.

c) DDoS: Distributed Denial of Service attacks are brute force attacks designed to overwhelm a target with a flood of requests. Cyber criminals compromise and harness the power of various internet connected devices (computers, copiers, security systems, baby monitors, refrigerators, microwaves, etc. and yes, we’re serious about refrigerators), then direct that computing power at a single target, flooding the victims with billions or potentially trillions of requests per second until the targeted organization is completely overwhelmed and shut down.

d) Business Email Compromise: Business email compromise is exactly what it sounds like. A hacker gains access to your email or a vendor’s email and utilizes that email to fraudulently induce various parties to transfer money or sensitive information.

Insider Threats

As we’ve found, not all attacks come from the outside. Employees are also a large driver of Cyber Losses.

a) Malicious or Disgruntled Employees: One of the best examples of the damage a malicious insider can cause comes from a professional services firm in the UK. The story goes like this: Firm hires a new employee to perform data entry and data integration, employee works from 9-5pm and at 5pm leaves work and brings all their data from work home with them to their significant other who is a hacker, said hacker uses this information to commit wide scale insurance fraud.

b) Careless employees and Honest Mistakes: Phishing and Social Engineering attacks are designed to trick employees into disclosing sensitive information, transferring money to a bad actor or clicking on a link or attachment that provides the entry point for a malware payload. Lost and compromised devices such as laptops and mobile phones have also proven to cause huge losses to a variety of organizations and some Cyber Insurance carriers contain exclusions for the losses arising out of lost devices that are unencrypted.

Third Party Incidents

Everyone has had the story of the Target breach beaten repeatedly into their head at this point, but for a quick recap: a third-party contractor that did business with Target was compromised by a bad actor. The bad actor then used the third-party contractor as an entry point to infiltrate Target’s systems, ultimately resulting in the massive theft of credit card information belonging to Target’s customers and enormous financial losses for Target itself. While the chances are your firm is not the size of Target, it is helpful to use this example as a lens through which to view the third-party “Hub and Spoke” security issue. Think of your firm as the “Hub” in this scenario, with all the third party vendors you use every day as the “Spokes.” Your firm is doing a great job with cybersecurity due diligence and purchases Cyber insurance. In essence, the “Hub” is protected. Are all of your “spokes” (cloud providers, billing services, credit card processors, software vendors) protecting themselves the same way? How are you validating or contractually mandating them to do so?

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Solutions:  Cybersecurity + Cyber Insurance = Cyber Resilience

Finally some good news. While the Cyber world can be a scary place, the good news is there are actions you can take to help prepare your firm for Cyber Incidents.

Cybersecurity

There are a TREMENDOUS number of Cybersecurity solutions out there, so many, in fact, that sometimes we’re tempted to throw our hands up and say “Where do I even start?” While this is by no means an exhaustive list, these are some of the easiest to implement and effective steps your firm can take right now to harden your firm’s Cyber Risk posture:

  1. Firewalls and Anti-Virus Software: Will this prevent your firm from being compromised? Not necessarily. Does it help protect you? Yes. Think about this from the analogy of a burglar looking to rob a house. The firewall or anti-virus is a fence around the property. Does a fence prevent every burglary? Absolutely not. Does it make it a little bit harder? Yes.
  2. Strong Passwords and Password Management: Everyone reading this probably just rolled their eyes, but the bottom line is that a huge number of Cyber Incidents could be thwarted by stronger passwords and password management. There are a ton of good vendors out there that can help!
  3. Back-Ups: Make sure you are backing up your information. There are a variety of different ways to do this and a proper discussion of back-ups would require an article unto itself. Oftentimes folks are lulled into a false sense of security because “everything is backed up” only to find their back-ups have been compromised or they haven’t tested them in 10 years. The bottom line, however, is that back-ups are important. Make sure you back up your data in one way or another.
  4. Employee Training: The vast majority of Cyber Incidents involve the human element at some point in the process. Training employees to be on the lookout for suspicious emails or behavior within the company will go a long way in creating a company culture that takes Cyber Risk seriously.
  5. Multi-Factor Authentication: Enabling multi-factor authentication (using two or more pieces of information to validate a user) is an incredibly simple way to harden your defenses. The leader of the Cyber Practice at a large Insurer recently shared that about 1/3 of their recent claims could be prevented by properly implementing Multi-Factor Authentication.
  6. Patching: Remember all of those little notifications that pop up and tell you that an update is available? Those are important! It means that someone found a vulnerability AND they also found a way to patch that vulnerability.
  7. Constant Testing and Updating: Once you’ve established cybersecurity protections, back-ups, incident response plans, etc. make sure you test them!

Cyber Insurance

A lot has changed in the Insurance world over the past 5-10 years and nowhere is that more evident than in the world of Cyber Insurance. Before we get into the specifics of Cyber Insurance, let’s understand what Cyber Insurance is at a high level:

Cyber Insurance is a risk transfer mechanism that shifts the financial burden of a Cyber Incident from an organization to an Insurer.

Okay, that sounds nice but what does it do?

First Party Coverage

  1. Cyber Incident Response: Carriers have partnered with a wide-variety of law firms, forensics teams and PR experts to provide immediate and effective response to a Cyber Incident. The Incident Response portion of a Cyber Policy provides access to and funding for:

    a) Data Breach Coach: A law firm specializing in responding to Cyber Incidents.
    b) Forensics Teams: Your “boots on the ground.” These folks will determine: What happened? Is it still happening? What do we do now?
    c) Notification Costs: Do we have to notify anyone? If so: Who? How? When? What will be our message? The “Where” is also crucial, as there are currently 50 different state guidelines for data breach notifications and the laws apply to the affected individual rather than the affected organization, so you could have one breach that triggers multiple state reporting guidelines.

  2. Extortion/Ransomware Coverage: Provides coverage for Ransom payments and expenses arising out of a Ransomware threat.
  3. Digital Data Recovery: Covers the cost to restore, replace, recreate, re-collect or recover Digital Data from records that have been corrupted, stolen or destroyed.
  4. Business Interruption: Covers loss of Income (net profit before taxes) and extra expenses that a business suffers to an interruption or degradation in service cause by a Cyber Incident. Note: Business Interruption due to Cyber Incidents is now widely excluded under traditional Insurance Policies.
  5. Cyber Crime: Theft of funds or securities is technically covered under Crime Insurance, however there is a clear overlap between Cyber and Crime in this case. It is crucial to understand how your Cyber and Crime coverages interact to ensure that you are covered for a Cyber Crime loss.

Third Party Coverage

  1. Privacy/Network Security Liability: Covers defense and settlements for third party liability claims arising out of:
    a) Actual/alleged failure of Network Security
    b) Actual/alleged failure to protect Personal, Protected or Confidential Info
    c) Actual/alleged failure to prevent the transmission of malicious computer code
  2. Regulatory Proceedings: With the ever-expanding list of Data and Privacy Regulations (HIPAA, CCPA, BIPA, GDPR to name a few), coverage for regulatory actions and investigations has never been more important.
  3. Payment Card Industry (PCI) Fines and Penalties: Coverage for losses which an organization is legally obligated to pay as a result of the insured actual or alleged failure of Network Security or failure to properly handle, protect, dispose of Payment Card Data.
  4. Media Liability: Coverage from claims pertaining to an organization’s display of Media Content on their website, in printed material or Media content posted by or on behalf of an organization on any social media site.

Benjamin Franklin and Mike Tyson: Cyber Experts

“Failing to plan is planning to fail” – Benjamin Franklin

“Everyone has a plan until they get punched in the mouth” – Mike Tyson

Although these two probably didn’t have a tremendous amount in common, we have brought them together here because their sage words help frame the approach your firm should take to Cyber Risk.

Make a plan! Fortify your defenses with cybersecurity best practices, develop an internal response plan for a Cyber Incident, and transfer the financial cost of an Incident to an insurer who will also bring in an external Cyber SWAT team to get you back up and running ASAP.

Test your plan! Plans look nice on paper, but as our friend Mike reminds us, when things get real, plans tend to go out the window. Make sure you test your plan and everyone involved knows their roles and responsibilities.

The Cyber World can be a scary place but there are lots of ways to help make it safer for your firm. The worst thing you can do is to do nothing; take action today. And if you ever find yourself overwhelmed or scared, just imagine Ben Franklin and Mike Tyson talking you through all of this… That should help!

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Written By: Adam Abresch | Acrisure National Cyber Risk Practice Leader

As the Cyber Risk Practice Leader at Acrisure, (parent company of AHERN), Adam is responsible for designing custom Cyber, Crime and Technology solutions for Acrisure clients across the globe. Adam is also a guest lecturer at Fordham University, Hofstra University and leads Cyber Liability education for over 250 Acrisure Partner Agencies throughout the country.

Adam is a frequent speaker and thought leader on Cyber Risk, including featured presentations at NetDiligence, the Professional Liability Underwriters Society (PLUS) Cyber Conference and the New Jersey and New York City Bar Associations. A proud Tarheel, Adam graduated from the University of North Carolina at Chapel Hill and maintains a Certified Insurance Counselor (CIC) designation, Cyber COPE Insurance Certification (CCIC) from Carnegie Mellon/ Chubb and was the recipient of NetDiligence’s 2019 Toby Merrill Rising Star Award.

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Substantial portions of this work appeared in the November 2020 issue of Orange County Lawyer magazine (Page 40). The views expressed herein are those of the Author(s). They do not necessarily represent the views of the Orange County Lawyer magazine, the Orange County Bar Association, The Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched. Reprinted with permission.

Since the onset of the COVID-19 pandemic, companies across the globe have been working to develop a COVID-19 vaccine. As the pandemic continues on and vaccine clinical trials progress, there may be a possibility of a COVID-19 vaccine being approved for use in the foreseeable future.

The prospect of a vaccine is exciting to most, but also presents challenges for employers. Employers may be considering whether vaccination will be encouraged or mandated.

Employers must navigate the inherent legal risks and logistics of mandating or encouraging employees to receive the COVID-19 vaccine. To do so, employers should seek legal counsel to discuss which course of action is best for their organization. This article provides a general informational overview of considerations for employers.

Governmental Guidance

The Equal Employment Opportunity Commission (EEOC) and OSHA have both issued guidance on vaccines in the employment context in the past, but make no specific mention of a COVID-19 vaccine.

OSHA Guidance

Per OSHA, employers can require employees to receive vaccinations for influenza, providing they properly inform employees of “the benefits of vaccinations.” In addition, OSHA states that employees can refuse a vaccination due to a reasonable belief that they have an underlying medical condition that creates a real danger of serious illness or death, and that they “may be protected under Section 11(c) of the Occupational Health and Safety Act of 1970 pertaining to whistleblower rights.”

EEOC Guidance

The EEOC, which enforces the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), has also issued guidance regarding vaccines in the employment context. Specifically, in March 2020, the EEOC addressed whether employers covered by the ADA and Title VII can compel employees to receive the influenza vaccine. In this guidance, it was noted that there was not a COVID-19 vaccine yet.

Additionally, the EEOC explained that an employee may be entitled to an exemption from a mandatory vaccine based on a disability that prevents the employee from taking the vaccine. This would be considered a reasonable accommodation, and the employer would be required to grant the accommodation, unless it creates an undue hardship for the employer. The ADA defines an undue hardship as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

The EEOC also states that, under Title VII, employees with sincerely held religious beliefs may be entitled to an exemption from a mandatory vaccination, which is considered a reasonable accommodation, unless it creates an undue hardship for the employer. Note that undue hardship under Title VII is defined as a “request that results in more than a de minimis cost to the operation of the employer’s business.” This is a much lower standard than under the ADA.

As such, these exemptions and the discrimination risk posed by mandating employees to receive any vaccine—including a COVID-19 vaccine when and if it becomes available—have led the EEOC to advise employers to simply encourage vaccination rather than mandating it.

Employer Considerations

There are a host of considerations employers need to review before coming to a decision on whether to encourage or require employees to receive a COVID-19 vaccination.

Employers should consider the following when reviewing their options:

  • Evaluating undue safety burdens—Employers will face the challenge of determining whether an employee poses an undue safety burden on co-workers by choosing not to get vaccinated (if the employer is simply encouraging receiving the vaccine) or being exempt from a mandated vaccination. When evaluating this consideration, employers will need to decide whether there are other precautions that can be put into place to protect employees, which may include:
    • Social distancing protocols
    • Requiring employees to wear masks at work
    • Leveraging telecommuting arrangements

Assessing and granting exemptions—If employers decide to require employees to get a COVID-19 vaccine, they will need to be prepared for the difficult task of determining whether an individual worker qualifies for a reasonable accommodation in the form of an exemption from receiving the vaccine under the ADA or Title VII. This assessment would need to be done on a case-by-case basis and could potentially leave an employer open to legal action should they wrongly deny an exemption request. In addition, the employer will also have to navigate protecting the rest of the workforce should an employee be exempt from being vaccinated.

  • Evaluating legal risks of requiring vaccines—Employers need to consider the possibility that they may receive legal claims if they require employees to be vaccinated and an employee experiences an adverse reaction to the vaccine or develops subsequent health problems.
  • Sorting out the logistics of requiring or recommending vaccination—Regardless of whether employers require or mandate COVID-19 vaccination, there are logistical elements to consider, including:
    • Will employers hold on-site vaccination clinics?
    • What vaccine, if more than one will be available on the market, will be used?
    • Who will pay for the vaccine?
    • Will the company require or cover the costs of vaccination for the employee’s family?
    • How long after the vaccine becomes available must workers receive the vaccine, if vaccination is mandated?

In addition to the considerations explained above, employers should consult legal counsel to determine whether there are unique risks to consider for their specific organization.

Employers should begin discussions on the topic of COVID-19 vaccinations at their organization today. Waiting until a COVID-19 vaccine is approved and readily available may leave employers open to overlooking important legal and logistic considerations.

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This HR Insights is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. © 2020 Zywave, Inc. All rights reserved.

 

As an employer, you care about making your workforce feel valued and managing your organization successfully. However, even if you do everything you can to ensure smooth relationships with your staff, employment practices liability (EPL) risks remain. That’s why it’s crucial for your organization to have EPL coverage. Such a policy can offer protection for claims that result from employees alleging various employment-related issues—such as discrimination, harassment and wrongful termination.

Apart from securing EPL coverage, it’s important to stay up to date on the latest EPL market trends. In doing so, your organization will have the information needed to respond appropriately and make any necessary coverage adjustments. Don’t let your organization fall behind in this evolving risk landscape. Review this guidance to learn more about EPL trends to watch in 2021.

The COVID-19 Pandemic

The ongoing COVID-19 pandemic has forced many organizations to make serious workplace changes—such as having employees work remotely, adjusting office setups or conducting significant staff layoffs or furloughs. And with these changes, EPL claims followed. Some of the most common, pandemic-related EPL claims include:

  • Allegations that unsafe working conditions or minimal precautionary measures (e.g., poor sanitation practices, a lack of social distancing protocols or inadequate personal protective equipment) contributed to employees getting sick or dying from COVID-19
  • Allegations of retaliation after an objection to unsafe working conditions or workplace exposure to individuals displaying COVID-19 symptoms
  • Allegations of disability discrimination related to remote working (e.g., failing to accommodate remote staff or denying employees the option to work remotely)
  • Allegations related to employee leave concerns (e.g., forcing staff to take leave, retaliating against employees that take leave due to COVID-19 or not allowing staff to take leave due to COVID-19 altogether)
  • Allegations of laying off or furloughing staff without providing proper employment notices
  • Allegations of discrimination related to laying off or furloughing employees

With these trends in mind, it’s crucial to fully document and review any organizational changes created by the COVID-19 pandemic. These changes should be reviewed to ensure they adequately consider the needs of your workforce and are compliant with employment law.

Social Movements

Several social movements have led to an increase in EPL claims in recent years, including the #MeToo movement and the Black Lives Matter movement.

The #MeToo movement—which is an anti-sexual harassment campaign that was originally founded in 2006 and has gained significant social media attention since 2017—largely contributed to a 50% rise in sexual harassment lawsuits against employers over the past few years, according to the U.S. Equal Employment

Opportunity Commission (EEOC). This movement emphasizes how important it is for employers to implement effective sexual harassment prevention measures (e.g., a zero-tolerance policy and a sexual harassment awareness training program), reporting methods and response protocols.

The Black Lives Matter movement—which is a racial justice campaign that was originally founded in 2013 and resurged in 2020 in the form of nationwide protests—has the potential to become a driving factor in race-related workplace discrimination and harassment lawsuits. This movement makes it increasingly vital for your organization to take steps to promote diversity, acceptance and inclusion in the workplace, as well as take any accusations or reports of racism seriously.

LGBTQ+ Protections

Although the EEOC had previously released guidance stating that workplace discrimination and harassment based on sexual orientation, gender identity and gender expression violated Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court just recently confirmed in 2020 that Title VII protects gay and transgender employees from such treatment. While this is a relatively new development, the Supreme Court’s decision highlights the need for your organization to ensure all LGBTQ+ employees feel properly supported in the workplace.

Age Discrimination

According to the U.S. Bureau of Labor Statistics, the share of employees over the age of 55 in the labor force is expected to rise to nearly 25% by 2024 (up from 13% in 2001). This demographic shift makes it increasingly important for employers to take steps to minimize the potential for age discrimination issues within the workplace. After all, the Age Discrimination in Employment Act (ADEA) forbids age discrimination against employees and job applicants aged 40 and over.

Despite the ADEA; however, a recent Hiscox study found that 21% of U.S. employees have reported experiencing workplace discrimination based on their age. Such discrimination can lead to poor staff morale, a tarnished organizational reputation and an increase in EPL claims. With this in mind, it’s important to review your organization’s employment practices to ensure you are fostering a workplace culture that rejects ageism.

Wage, Leave and Salary History

As wage and hour laws continue to change across the country, it’s critical that your organization regularly reviews state-specific legislation related to minimum wage, employee classifications (e.g., hourly or salaried), overtime pay, sick leave and other paid time off. A failure to provide your staff with adequate wages or paid leave could lead to various EPL claims.

Employers’ ability to receive their employees’ prior salary history has also become a rising concern. In fact, in some states, recent legislation now prohibits employers from requesting or requiring salary history from a job applicant as a condition of being interviewed, hired or even considered for a position. In light of these changes, it’s best to speak with legal counsel for state-specific employee wage, leave and salary history guidance.

Marijuana Legalization

Following the 2020 election results, medical marijuana is now legal in 36 states and recreational marijuana is now legal in 15 states. As marijuana legalization becomes increasingly commonplace across the country, it’s crucial for your organization to review any state-specific legislation and adjust workplace policies and procedures accordingly.

Specifically, some states have enacted legislation that restricts an employers’ ability to conduct drug tests for marijuana. Further, several state court cases have ruled in favor of the employee in recent employment lawsuits related to marijuana usage. This includes a case in which a disabled employee sued their employer for alleged workplace discrimination due to medical marijuana usage, as well as a case in which an employee sued their employer for alleged wrongful termination due to a positive drug test for marijuana.

That being said, your organization may need to reconsider or revise procedures related to conducting workplace drug tests for marijuana or basing employment decisions on an employee’s marijuana usage, as these practices could potentially contribute to EPL claims. Be sure to consult legal counsel for state-specific compliance guidance on this topic.

We’re Here to Help

You don’t have to respond to this changing risk landscape alone. We’re here to help you navigate these EPL market trends with ease. For additional coverage guidance and solutions, contact us today at (800) 282-9786 or via email.

To receive a no-obligation quote for Employment Practices Liability Insurance, please click here.

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This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice. © 2020 Zywave, Inc. All rights reserved.

As a result of the COVID-19 pandemic, many attorneys have been working remotely since March 2020, practicing virtually in jurisdictions where the lawyer is licensed, even if they’re physically located elsewhere. In response to this “new normal”, the American Bar Association (ABA) issued Opinion 495 on December 16, 2020, addressing remote work and the unauthorized practice of law (UPL) 

Formal Opinion 495 provides guidance when a lawyer may practice the law for which they are licensed while physically in a different jurisdiction. Specifically, a lawyer physically present in a jurisdiction in which they are not licensed to practice — and the local jurisdiction has not determined such practice is unauthorized – may practice if they meet the following guidelines:

  • Does not establish an office or other systematic presence in that local jurisdiction.
  • Does not “hold out” a presence or availability to perform legal services in that local jurisdiction.
  • Does not actually provide legal services for matters in that local jurisdiction, unless otherwise authorized.

The opinion notes that providing local contact information on websites, letterhead, business cards or advertising are examples of communications that would improperly suggest a local office or local presence.

To download a copy of Formal Opinion 495, please click here or visit AmericanBar.org.

 

It is our pleasure to extend to you a warm invitation to our upcoming virtual HR Leaders Compliance Summit in early February!

This year’s event is an expanded virtualization of a longstanding on-site gathering of Acrisure Agency Partner offices and the transformational Human Resources professionals they support. Over the course of this summit, you will hear from numerous subject matter experts that specialize in various HR-related disciplines including labor regulations, employee benefits trends, and human capital management best practices. Coming off the heels of 2020, we think you will find the agenda to be timely, relevant, and impactful.

We are also extremely excited to welcome Annie Duke as our keynote speaker on February 9, 2021. In addition to being a nationally recognized bestselling author and the only woman to have won the World Series of Poker Tournament of Champions, Annie is a respected decision strategist and business thought leader. Her background and expertise lend a valuable and unique series of insights to the challenges facing HR leaders and their organizations today.

Below is a general overview regarding topics that will be covered, as well as our keynote speaker. To view the detailed agenda, or for more information on how to register, please click here.

Here’s to a prosperous year of partnership in 2021!