Welcoming Employees Back to Office May Open Door to Liability Lawsuits

There is the potential for an increase in workplace liability lawsuits as more employees transition back to the office after working remotely due to COVID-19.

The heightened risk of bringing staff back together during the ongoing pandemic is increasing demand for certain coverages, such as employment practices liability insurance and directors and officers liability insurance.

At the same time, some insurers are re-examining the level of risk they are willing to assume. This means it can take longer and cost more to secure certain commercial liability coverages.

This underscores the importance of taking proactive steps to protect the wellbeing of your employees in order to reduce your risk of liability.

We outline a few risk mitigation strategies below, but first let’s review how some insurance policies may offer protection as it relates to return-to-work mandates during the pandemic.

Employment Practices Liability Insurance

Employment practices liability insurance can provide legal defence coverage if your business is named in an employment-related lawsuit. This insurance covers a variety of wrongful employment claims, including but not limited to:

  • Discrimination
  • Sexual harassment
  • Wrongful termination or wrongful discipline
  • Breach of employment contract
  • Failure to hire, employ or promote

In the case of COVID-19 and return-to-work mandates, there are a few different scenarios where an employee could claim they were discriminated against. For example:

  • An employee could claim that a mandatory vaccination policy discriminates against their medical or religious exemption.
  • Employees who are more susceptible to contracting coronavirus could claim the refusal to accommodate their request to work remotely discriminates against their age or medical condition.

Directors and Officers Liability Insurance

Directors and officers liability insurance can provide legal defence coverage for your directors and officers in the case of a lawsuit. While this policy typically does not cover bodily injury (such as a staff member contracting COVID-19 at the office), it may cover claims for financial loss caused by the mismanagement or wrongdoings of directors and officers.

In the case of COVID-19, this may include:

  • Failure to provide a safe environment for clients.
  • Failure to comply with government health authority regulations.

Protect Your Staff, Protect Your Business

Ensuring you provide a safe and healthy work environment is an important way to protect the wellbeing of your staff and clients and, therefore, protect your business from liability claims.

Every business is unique, so there is no single action plan that will be suitable for all organizations. Plus, as COVID-19 continues to evolve, the health and safety measures that must be taken by your organization will be impacted.

Here are a few measures your company should consider as it welcomes employees back to the office:

  • Adhere to government health and safety mandates. At a minimum, follow all health authority requirements in each of the jurisdictions where your organization operates. In any areas not addressed by the government, exercise an appropriate duty of care to protect the health and safety of your employees.
  • Consult with a qualified lawyer on your return-to-work protocols. A lawyer can identify and advise on how to remedy any potential gaps that may leave you vulnerable to liability claims.
  • Clearly and consistently communicate return-to-work protocols. Ensure all employees know and understand your company’s health and safety protocols. Ongoing communication and regular reminders can increase adherence among employees.
  • Maintain the privacy of your employees. Ensure adequate measures are in place to protect the privacy of your employees, including any coronavirus-specific details you may collect—such as vaccination records and positive tests.

The return to work does not signal the end of COVID-19 and the risks that the virus presents. In fact, insurers anticipate it will take years before the full impact of COVID-19 liability repercussions and resultant claims will be realized.

Please contact your broker if you have any questions about what your current insurance does and does not cover, or if you want to inquire about additional coverage.

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