August 18, 2022

As U.S. corporations bring workers back to the office, major insurers like Chubb, AIG, and Travelers brace themselves for an onslaught of claims related to labor and labor lawsuits.

According to Jackson Lewis, a law firm and employment law firm tracking these numbers, litigation and complaints related to Covid have steadily increased during the pandemic, with California and New Jersey receiving the most filings.

Experts say it is likely to increase as the courts wade through a backlog of cases and government agencies deal with pent-up claims.

“Employment practice liability insurers are very much aware of the additional claims activity that has not yet occurred,” said Kelly Thoerig, a US director of liability insurance for Marsh McLennan consultancy.

Employers are walking a tightrope when it comes to organizing a return to work that carries liability and risk, she said.

Three important things employers need to consider to protect themselves from litigation:

Who will return to work?

Management needs to assess whether they are discriminating against protected classes of employees when deciding who to bring back to the office first.

“Who did you let go of? Who did you send home?” she said, going through a list of critical questions. “Who comes first to be allowed to come back? Or who do you have to come back?”

Ensuring a safe job

When employees come back, companies need to make sure it’s a safe environment. This raises additional questions about whether workers should wear masks or whether a company should need Covd-19 vaccination.

While it is legal for employers to prescribe vaccines for workers, it may not be advisable, Thoerig said. This is partly due to “downstream liability when a person has a serious reaction to the vaccine or has complications because of the vaccine,” she said.

On the other hand, some employees or customers may require companies to have vaccines.

“This presents different but very real business and legal concerns to employers: are they doing enough to protect their employees and customers?” Said Frank Alvarez, co-director of the Jackson Lewis Disability, Vacation and Health Management practice. “Are they addressing privacy concerns, employee medical choices, and the balancing issues of employee relationships between those who are vaccinated and those who are not?”

Thoerig said she urged her customers to use incentives to persuade resistant employees to get the vaccine.

For example, Wynn Resorts is calling for weekly Covid-19 tests with negative results for its employees who have not been vaccinated. This gives an employee an incentive to get a chance.

Requests for accommodation

U.S. Equal Employment Opportunity Commission data shows a surge in disability discrimination claims filed with the agency dealing with the pandemic.

Insurer Travelers suspects that housing conflicts are driving the increase. For example, when an employee asks about the possibility of being able to continue working from home because they have an illness that puts them at increased risk if they contract Covid-19. If the request is denied, the representative can request accommodation.

This situation can also occur if a staff member states that she cannot take the vaccine because of an allergy. If the employer says it anyway, she can say that her employer discriminated against her because of it.

“The idea that certain people or groups of people or even individual employees are preferred or disadvantaged over others should immediately give cause for concern,” said Thoerig.

Since employees are being called back to the office in greater numbers, they could also have a strong argument, said Thoerig.

“We’ve been effectively doing our work from our home office, from our basement, for the past 12-14 months. And why isn’t this a decent place to stay when I’ve been as productive as I was from home?” She said.

Thoerig has advised customers to be as flexible as possible when applying for accommodation.

“Employers are trying very hard to reconcile all of these considerations,” said Alvarez. “The business world has never faced a situation where the law is so uncoordinated and gives so little indication of potential legal risks.”