2020 has been a challenging year. It’s also been a year of growth and change. Many have used flexible work arrangements and virtual meetings to adapt. Some have changed how they’ve bought and sold products – using technology, delivery, and touchless transactions.
Government programs have been in the forefront. The Paycheck Protection Program, Families First Act and CARES Act have enabled many to survive the financial hardship of the pandemic. Many municipalities and states have restricted business and imposed masking ordinances.
We’ve also experienced many illnesses and deaths associated with COVID-19. On January 5th, the CDC reported over 21 million infections and 357 thousand deaths.
Recently, vaccines have been deployed and are being provided to health care workers and high-risk individuals. As we move into 2021, many will take the vaccine, lessening the impact of the pandemic.
As we begin a new year, I thought I’d provide some perspectives on our industry and how it ultimately impacts you.
Business feared a flood of COVID-19 lawsuits, but it hasn’t happened – yet. Attorneys have found it challenging to hold a business responsible for spreading the disease. Workers Compensation is responding to claims if they are a direct result of the employee’s job duties such as health care workers, EMTs, police, fire, etc. These claims have been less severe than expected. State and federal governments are considering legislation limiting liability for business. Since March, more than 1,000 lawsuits have been filed across the nation. The Missouri Chamber of Commerce has made this a priority for the upcoming state legislative session.
Business Income claims and lawsuits will be battled out in our legal system for months and years. As we’ve communicated previously, according to policy language, loss of business income must be triggered by direct physical damage to property.
Typical “triggers” include fire, wind, or physical damage to a premise. In addition, civil (government) shutdowns may be covered, however, they must be caused by some type of direct physical loss.
After the SARs pandemic in the early 2000’s, many insurance companies further clarified the intent of the policy by excluding viruses and/or communicable disease. Others continue to rely on the “direct physical loss” definition in the policy. To date, hundreds of lawsuits have been filed to challenge this policy language. Many have been dismissed by judges; however, some are moving forward towards trial.
The next emerging risk and HR issue surrounds the vaccine. Currently, Pfizer and Moderna have been approved by the FDA and are being deployed throughout the country. This phased distribution has begun with healthcare workers and will continue with essential workers, and high risk older adults.
When the vaccine is available to the masses, most polls indicate approximately two-thirds of the population will initially take the vaccine. As an employer, what should be your role in the process and can you mandate and/or provide incentives to receive the vaccine?
All employers should continue to protect against COVID-19 hazards at work. This includes taking extra precautions on sanitization, distancing, masking, and providing remote work where appropriate. Contact tracing and infection protocols (including quarantines) should also be considered.
Most employers will work to educate, inform and, in most cases, encourage employees to receive the vaccine when available. We would encourage you to begin considering what your role in the process will be and if you will provide information and/or encourage the use of the vaccine.
Recently the EEOC issued guidance on mandating vaccines. Here’s a summary:
- Employers can require that employees receive the COVID-19 vaccine as a condition of returning or remaining in the workplace.
- Employers must attempt to accommodate employees who, due to disability or religious beliefs, decline to receive the vaccine.
- If a business determines, based on objective evidence, that the presence of an unvaccinated employee presents a direct threat to others, they may exclude that employee from the workplace subject to making reasonable accommodation.
- If the business excludes the unvaccinated employee from the workplace based on perceived direct threat, the employer must assess whether accommodations such as remote work can be provided.
If you thought masks were controversial, vaccines could prove to be even more divisive. Unfortunately, businesses have been and will continue to be relegated to make these difficult decisions. We favor making thoughtful, purposeful decisions over not addressing these issues or ignoring the consequences.
If you haven’t already, we recommend forming a team to discuss options and ultimately executing a plan around COVID-19 related issues. Different perspectives are useful, and a HR professional or employment attorney can be invaluable. Also, invite two-way communication with your staff – it will help you craft a better strategy.
Lastly, you don’t have to go through this alone. Engage other business leaders, community experts and trusted advisors. Ollis/Akers/Arney has experts (HR and Risk) and resources to assist you – we’re ready to help. We’re going through this process ourselves and assisting many others in our region.
As always, don’t hesitate to reach out on this or any other matter – we’re here for you.
