Category: Commercial Insurance

EEOC Updates COVID Guidance to Address Pandemic-Related Workplace Retaliation

By Anita Byer, Setnor Byer Insurance & Risk

The Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to address retaliation in pandemic-related employment situations. This was prompted in part by the fact that retaliation has been the most frequently alleged form of discrimination for many years. According to EEOC Chair Charlotte Burrows, the update “provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.”

The anti-retaliation updates apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Though the laws remain the same, the updated technical assistance communicates the EEOC’s position when it comes to COVID-related retaliation claims. The EEOC notes that retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal or temporary. They also apply to job applicants and to former employees (such as when an employer provides a job reference).

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as reporting or resisting EEO violations, filing a charge of discrimination or requesting an accommodation. Depending on the facts, unlawful retaliation can include:

  • denial of promotion or job benefits;
  • non-hire;
  • suspension or discharge;
  • work-related threats or warnings;
  • negative or lowered evaluations; or
  • transfers to less desirable work or work locations.

Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights. However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

The EEOC notes that engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons.  Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  This would include non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity, like an accommodation request.

To reduce the likelihood of claims, employers should proceed cautiously when presented with any COVID-19-related matter. This may include seeking counsel from a licensed professional. Employers need Employment Practices Liability Insurance to cover the high cost of defending actual and alleged claims of unlawful conduct. Why? The EEOC is watching and offending employers are paying.

Please contact us for additional information about protecting your business during the COVID-19 pandemic.

Great News! Florida’s Workers’ Compensation Insurance Rates Decreasing in 2022

By Anita Byer, Setnor Byer Insurance & Risk

Florida employers will have one more thing to be happy about in 2022. Workers’ compensation insurance premiums are going down…again. The Office of Insurance Regulation approved an overall average statewide decrease of 4.9 percent for workers’ compensation premiums in Florida. The rate decrease applies to new and renewal policies beginning January 1, 2022. This is the sixth consecutive year that rates have gone down in Florida.

The rate reduction was proposed by the National Council on Compensation Insurance (NCCI), a rating organization authorized to make rate filings on behalf of workers’ compensation insurance companies in Florida. According to NCCI, the workers’ compensation system continues to experience unprecedented results due to a combination of underwriting discipline, declining frequency, moderating severity and adequate reserves.

NCCI states that claims frequency has generally continued a decades-long downward course driven by technology, safer workplaces, improved risk management and a long-term shift from manufacturing to service sectors. Recent data show that frequency also decreased because of indirect pandemic-related effects. Once the proposed overall average rate level change is determined, NCCI separately determines rates for each workers compensation classification code using class-specific data.

It’s worth noting that explicit adjustments for the potential impact of a pandemic were not included in NCCI’s rate filing. After extensive analysis of how to best reflect pandemics in future rate filings, NCCI determined that a catastrophe provision is the most appropriate way to reflect exposure to future pandemics. As a result, NCCI proposed a Catastrophe (other than Certified Acts of Terrorism) provision, for any single event or peril resulting in workers compensation losses in excess of $50 million nationwide (which may include pandemics). Although NCCI withdrew this proposal, it has plans to resubmit it to the Florida Office of Insurance Regulation at a future date.

Please contact us about paying less for workers’ compensation insurance in 2022.

 

Affordable Care Act: Will Your Group Health Plan be “Affordable” in 2022?

By Anita Byer, Setnor Byer Insurance & Risk

The IRS announced that the Affordable Care Act’s affordability threshold for employer-sponsored group health plans will be 9.61 percent in 2022. Employers with 50 or more full-time or full-time equivalent employees (Applicable Large Employers or ALEs) must recognize that next year’s affordability threshold will be lower than the 9.83 percent used in 2021. This means that a group health plan that was affordable in 2021 may be considered unaffordable in 2022, despite being exactly the same. As a result, many ALEs will need to make adjustments to avoid potential ACA penalties in 2022.

ALEs are generally required to offer full-time employees “affordable” minimum essential health care coverage to avoid the ACA’s employer shared responsibility (pay-or-play) penalty. Affordability is calculated as a percentage of household income. Since employers typically do not know their employees’ household income, ALEs can use one of the ACA’s affordability safe harbors to determine the most employees can be required to pay without exceeding the affordability threshold.

For example, let’s assume Sam worked 40 hours per week for 52 weeks in 2022. If Sam earned $10 per hour, the most Sam can be required to pay for the lowest-cost, self-only coverage option offered by Sam’s employer is:

  • $166.57 per month (W-2 Safe Harbor Method);
  • $124.93 per month (Rate of Pay Safe Harbor Method); or
  • $103.15 per month (Federal Poverty Line Safe Harbor Method—2021).

If Sam earned $15 per hour, Sam’s required contribution for the lowest-cost, self-only coverage option cannot exceed:

  • $249.86 per month (W-2 Safe Harbor Method);
  • $187.39 per month (Rate of Pay Safe Harbor Method); or
  • $103.15 per month (Federal Poverty Line Safe Harbor Method—2021).

The affordability threshold for group health plans beginning in 2022 is only a fraction of a percent lower than this year’s threshold, but the consequences for ALE’s that fail to adapt accordingly can be substantial. To ensure compliance with the ACA’s affordability requirement in 2022, ALEs need to evaluate and possibly adjust their health plan pricing options, cost-sharing structure, and in some cases, compensation levels.

Please contact us if you would like to learn more about ACA-compliant group health plan options for 2022.

OSHA Imposes Mandatory COVID-19 Vaccination and Testing Policy on Employers with 100+ Employees

By Anita Byer, Setnor Byer Insurance & Risk

The Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) to reduce the spread of COVID-19 in the workplace. It generally requires private employers with 100 or more employees (covered employers) to develop, implement and enforce a mandatory COVID-19 vaccination policy. Alternatively, covered employers can adopt a policy requiring employees to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS is effective as of November 5, 2021, but covered employers have thirty days to comply with most of its provisions.

In addition to implementing a COVID-19 vaccination / testing policy, covered employers must:

  • Determine each employee’s vaccination status, obtain proof of vaccination and maintain records (and a roster) of each employee’s vaccination status.
  • Provide reasonable time (up to 4 hours) for employees to get vaccinated and reasonable time and paid sick leave to recover from any side effects.
  • Ensure that each unvaccinated employee is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to provide prompt notice of a positive COVID-19 test or diagnosis.
  • Immediately remove any employee, regardless of vaccination status, who received a positive COVID-19 test or diagnosis and keep them out of the workplace until return-to-work criteria are met.
  • Require unvaccinated employees to wear a face covering when indoors or in a vehicle with another person for work purposes.
  • Provide employees with information about: the ETS and its requirements; vaccine efficacy and safety; protections against retaliation and discrimination; and criminal penalties for knowingly supplying false statements or documentation.

The ETS does not require employers to pay for testing, though some may be required to do so to comply with other laws, regulations or collective bargaining agreements. Employers are also not required to pay for face coverings. OSHA posted additional information and resources, including FAQs, policy templates and fact sheets, at COVID-19 Vaccination and Testing ETS.

This is obviously a momentous policy change with far-reaching implications. In the coming days, covered employers nationwide will be digging through the 150-page ETS (triple column, single-spaced) to learn more about its specific requirements because the devil, as always, is in the details. State governors and attorneys general are no doubt doing the same. Some have already announced their intention to oppose the ETS in court. This is just the beginning.

Novelty and uncertainty always increase the likelihood of mistakes and the need for Employment Practices Liability Insurance. Please contact us for additional information about protecting your business during the COVID-19 pandemic.

What is Multi-Factor Authentication and Why Should Everyone Be Using It?

By Anita Byer, Setnor Byer Insurance & Risk

Did you know that the majority of data breaches are driven by credential theft? Hackers are constantly probing the Internet trying to steal login credentials. One uninformed or unsuspecting user or one careless act, and that’s it. Your world is now their oyster. Fortunately, there is a simple way to keep this from happening. It’s called multi-factor authentication, and it’s very effective. In fact, according to Microsoft, MFA can block over 99.9 percent of account compromise attacks.

Multi-factor authentication (MFA) is a security process that requires more than one method of authentication from independent sources to verify a user’s identity. In other words, a person cannot access a system or account without first providing two or more authentication factors (credentials) that uniquely identify that person. These credentials can be:

  • Something You Know (password, PIN, security question)
  • Something You Have (security token/app, verification via text, call or email)
  • Something You Are (fingerprint, facial recognition, voice recognition)

A common form of MFA requires users to enter their username and password (first factor). The system will then generate and send a unique one-time code (second factor) to the user’s phone or email. If this code is not entered before it expires, account access will be denied. The level of security increases with each authentication factor added to the login process. As you can see, MFA requires hackers to steal more than just your password to access your accounts, like your phone or your thumb(print).

Small and medium-sized businesses should have Cyber Perils Insurance Coverage to protect against various cyber threats and liability exposures, including the cost of complying with data breach notice laws.

According to the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA), MFA should be used whenever possible, particularly for systems, networks and accounts containing sensitive financial, business or personal data. MFA should also be deployed to Internet-facing systems, such as email, remote desktop and Virtual Private Network (VPNs).

MFA makes it very difficult for hackers to access personal or business systems, networks and accounts, like remote access technology, email, ACH and billing systems, even with the password. While some accounts require MFA, others make it optional. If you have the option to enable MFA, do it now. Systems that still don’t have MFA capabilities are way behind the curve, and should probably be avoided.

Please contact us to learn about insurance coverage that is specifically designed to protect against cyber threats, data security and identity theft.

2021 Hasn’t Broken Record for Most Billion-Dollar Climate Disasters (Yet?)

By Anita Byer, Setnor Byer Insurance & Risk

Did you know that the U.S. experienced 308 billion-dollar weather and climate disaster events since 1980? According to the National Oceanic and Atmospheric Administration, the total cost of these events exceeds $2 trillion. Since 1980, the U.S. averaged 7.1 billion-dollar events per year. In 2020, there were 22 billion-dollar events, the most in any single year…for now. You see, 2021 is already #2 on the list, and there’s still time left on the clock.

During the first nine months of 2021, we’ve already seen 18 billion-dollar weather and climate disaster events, including drought, flooding, severe storms, tropical cyclones, wildfire and winter storms. NOAA created the following map to show the approximate location of each event.

According to NOAA, these events resulted in the deaths of 538 people and had significant economic impact on affected areas. Unfortunately, billion-dollar events are happening more often than before. Over the past five years, the U.S. averaged more than twice as many billion-dollar weather and climate disaster events per year (16.2) than we averaged per year over the past forty years (7.1). This is also the seventh consecutive year with 10 or more billion-dollar events. These events are costlier too. The total cost over the last five years is nearly one-third of the cost total over the past 42 years—the highest 5-year cost average on record.

This disturbing trend underscores the need for adequate insurance coverage to protect against the financial losses caused by weather and climate disaster events. Property insurance has become an absolute necessity for homes and businesses nationwide. These policies do not cover flooding, so every home and business needs flood insurance too, regardless of whether the property is located in a flood zone. Why? There’s no such thing as a No-Flood-Zone!

Please contact us about affordable insurance options that can limit your loss during the next billion-dollar weather and climate disaster event.

Every Month Should Be Cybersecurity Awareness Month

By Anita Byer, Setnor Byer Insurance & Risk

October may officially be Cybersecurity Awareness Month, but that doesn’t mean businesses can afford to take the rest of the year off. Gone are the days when cybersecurity was seen as an ancillary function. Today, businesses should be thinking of cybersecurity as an essential core function, because that’s precisely what it has become. A single cybersecurity incident can threaten a business’s operations, reputation, bottom line, and in some cases, its very survival.

Protecting against cyber risks, like other operational risks, requires a holistic approach. According to the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA), businesses need to develop and maintain a culture of cyber readiness. This is obviously easier said than done, but it’s not impossible. CISA recommends incorporating the following essential elements to increase the likelihood of successfully creating a culture of cyber readiness.

Your Leaders. Workplace culture often reflects leadership, so any changes must start at the top. Ownership and management must invest the time, money and resources needed to effectively drive cybersecurity strategies, policies and procedures.

Your People. Making people part of the first line of defense against cyberattacks reduces vulnerabilities and drives a culture of ownership. Personnel must be trained to recognize cybersecurity risks, like phishing, password hacks and malware.

Your Systems. Cybersecurity requires knowing which devices are connected to your network, which applications are in use, who has access to these, and the security measures in place. A cyber-ready business proactively keeps its systems up-to- date and secure.

Your Surroundings. Access to your digital environment, like access to your physical workplace, must be limited. Setting access privileges and establishing operational procedures requires knowing who operates on your technology and with what level of authorization and accountability. User and access management is a complex, yet crucial component of cybersecurity.

Your Data. Information that is stored, processed or transmitted must be protected. Identify and backup all critical and sensitive data and have plans in place to recover and restore systems, networks and data in the event of an attack.

Your Crisis Response. Plan, prepare and conduct drills for cyber-attacks and incidents, like a fire drill. This involves having incident response plans and procedures, trained staff, assigned roles and responsibilities, and incident communications plans.

While a culture a cyber readiness can significantly enhance cybersecurity, it isn’t foolproof. Every business should have Cyber Perils Insurance Coverage to protect against various cyber threats and liability exposures, including the cost of complying with data breach notice laws. Please contact us if you would like more information about insurance specifically designed to protect against cyber threats and data security breaches.

Florida’s New $10 Minimum Wage Poster

By Anita Byer, Setnor Byer Insurance & Risk

Florida’s new $10 minimum wage poster is now available! Just in time too, because the largest minimum wage increase in Florida history is here. On September 30, 2021, Florida’s minimum wage will increase to $10 per hour. But that’s not the only thing that’s changing. In addition to making any necessary payroll adjustments, employers must also update their Florida minimum wage posters to reflect the new minimum wage.

Download the Florida Department of Economic Opportunity’s $10 Minimum Wage Poster.

Florida law requires employers to notify employees of their right to be paid no less than the minimum hourly wage and what they can do if their employer fails to do so. Employers can satisfy this notice requirement by posting the Department of Economic Opportunity’s “Notice to Employees – Minimum Wage in Florida.” But this notice can’t just be posted. It must be posted correctly.

  • The poster must be posted prominently in a conspicuous and accessible place in each establishment where minimum wage employees are employed.
  • The poster must be at least 8.5 inches by 11 inches and in a format easily seen by employees.
  • The text in the poster must be of a conspicuous size.
  • The text in the first line must be larger than the text of any other line.
  • The text of the first sentence must be in bold type and larger than the text in the remaining lines.

Remember that $10 per hour is just the first minimum wage increase required by the constitutional amendment approved by Florida voters. It will increase by $1 annually until it reaches $15 per hour on September 30, 2026. The annual adjustments for inflation are scheduled to resume in 2027. Employers must update their minimum wage posters annually to remain compliant with Florida law.

To reduce the likelihood of costly mistakes, employers should provide wage and hour training to managers and supervisors. Employers should also carry Employment Practices Liability Insurance with limited coverage for wage and hour claims. Contact us to learn more about protecting your business with Employment Practices Liability Insurance.

Can Florida Condominiums Prevent Unit Owners from Installing Natural Gas Fuel Stations?

By Anita Byer, Setnor Byer Insurance & Risk

The Florida Legislature has a history of volunteering (i.e., forcing) condominium associations to join the Green Movement. A couple of years ago, lawmakers were focused on electric vehicles. This year it was natural gas vehicles. As a result, unit owners now have the right to install not just electric vehicle charging stations, but natural gas fuel stations as well. This right, however, is not absolute. The new law contains various conditions and requirements that must be observed when installing a natural gas fuel station.

The new provisions governing the installation of natural gas fuel stations were added to the previously enacted statute governing the installation of electric vehicle charging stations. Consequently, the conditions and requirements that must be observed are nearly identical for both types of installations. Let’s take a closer look.

As of July 1, 2021, unit owners have an implied easement across the common elements to install natural gas fuel stations for their vehicles within the boundaries of their limited common element or exclusively designated parking area. The association board may not prohibit any such installation regardless of any restrictive covenant or provision to the contrary in the declaration of condominium, as long as:

  • the installation does not cause irreparable damage to condominium property;
  • the electricity powering the natural gas fuel station is metered separately (or by an embedded meter) and is paid for by the unit owner or their successor;
  • the cost to supply and store natural gas fuel is paid by the unit owner or their successor;
  • the unit owner pays the costs of installation, operation, maintenance and repair; and
  • the unit owner maintains and pays for hazard and liability insurance to cover the charging station.

The unit owner is also responsible for complying with all federal, state or local laws and regulations applicable to the installation, maintenance or removal of a natural gas fuel station. Moreover, associations can also require unit owners to:

  • comply with bona fide safety requirements and applicable building codes;
  • comply with reasonable architectural standards adopted by the association (dimensions, placement, external appearance);
  • hire licensed, registered and experienced firms;
  • provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance or use of the natural gas fuel station within 14 days; and
  • reimburse the association for the actual cost of any increased insurance premium amount attributable to the natural gas fuel station within 14 days.

To ensure compliance under the amended statute, condominium associations should consult with licensed professionals prior to taking any action involving natural gas fuel stations. Setnor Byer Insurance & Risk is available to discuss ways to identify, manage and insure the new risks created by the installation, maintenance and use of natural gas fuel stations. Contact us to discuss the benefits of our Condominium Insurance Program.

The Case for Employment Practices Liability Insurance

By Anita Byer, Setnor Byer Insurance & Risk

The case for employment practices liability insurance (EPLI) has never been stronger. Businesses are operating in a rapidly changing environment that keeps producing unprecedented, previously unimaginable challenges. COVID-19, #MeToo, gig workers, remote workers, medical marijuana, CDC guidance, quarantines, vaccines, Zoom meetings—the list goes on. Every business with employees is at risk. Yet, far too many businesses go without EPLI. Sure, they have their reasons, but most of them are actually myths. Let’s look at a few.

None of my employees would ever sue me. Let’s assume this is true (even though it’s not). Equal employment opportunity laws, like Title VII of the Civil Rights Act, protect applicants. They also protect new employees starting day one. How do you know what they will do? It’s also hard to predict what a desperate employee might do, regardless of how long they’ve been employed. Relying on the charity of others is not an effective risk management strategy.

Our organization complies with all employment laws. Virtually all businesses make a good faith effort to comply with applicable employment laws, but this isn’t always enough. Mistakes happen.

We are too small to worry about employee lawsuits.  Every business with employees is at risk, regardless of size. In fact, smaller businesses tend to operate casually and informally, which may increase the likelihood of a claim. And, smaller businesses often lack the resources to have HR professionals or legal counsel on staff to prevent or respond to employment-related claims.

We have an excellent HR department. That’s great! Large businesses have them too, and they get sued all the time. This reason also ignores the fact that HR policies and directives do not always filter down to the entire workforce.

EPLI is too expensive. This can be a legitimate reason, but it’s usually not. Instead of focusing on the policy premium, businesses need to consider the cost of not having EPLI. If you think the premium is expensive, just wait until that first bill from your attorney arrives. Remember, defense lawyers don’t accept contingency fees; they are paid by the hour. It’s also worth noting that EPLI policies are competitively priced, so the premiums are relatively low.

None of these reasons will protect against employment-related claims like an employment practices liability insurance policy. There is a world of difference between dealing with (and paying for) the defense of an employment practices lawsuit and filing a claim under an EPLI policy. One option is not only cheaper, but it provides a peace-of-mind that allows the organization’s focus to remain on the continued successful operation of the business. Needless to say, the alternative is much, much worse.

Please contact us to discuss the true cost and value of employment practices liability insurance.