Tag: Employment Practices Liability

Can Employers Prevent Unvaccinated Employees from Entering the Workplace?

By Anita Byer, Setnor Byer Insurance & Risk

Many employers are struggling with how to deal with the shrinking, yet substantial number of employees who are not vaccinated for COVID-19. As infection rates increase, employers are once again forced to consider actions to maintain operations while protecting the health, safety and welfare of their employees. Some are considering policies that require all employees physically entering the workplace to be vaccinated for COVID-19. Is this legal?

According to the Equal Employment Opportunity Commission, federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. However, the EEOC stresses that it must be done in a manner that does not violate the reasonable accommodation provisions of Title VII of the Civil Rights Act and the Americans with Disabilities Act.

These laws may require an employer to provide reasonable accommodations for employees who do not get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice or observance. Reasonable accommodations may include requiring an unvaccinated employee entering the workplace to wear a face mask, maintain social distance from others, work a modified shift, get periodic COVID-19 tests or be given the opportunity to telework. A reasonable accommodation, however, is not required if would pose an undue hardship on business operations. Courts define “undue hardship” under Title VII as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which generally requires significant difficulty or expense.

The EEOC cautions that as with any employment policy, employers must ensure that their vaccine requirement does not have a disparate impact on employees based on a protected characteristic (race, color, religion, disability, etc.). Policies that disproportionately impact or exclude employees because of these characteristics are discriminatory and unlawful. The EEOC urges employers to recognize that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others. As a result, some employees may be more likely to be negatively impacted by a vaccination requirement.

Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. Employers should also carry Employment Practices Liability Insurance to cover the high cost of defending against claims of unlawful conduct.

Please contact us if you would like to learn more about Employment Practices Liability Insurance.

Florida’s Minimum Wage is Increasing in 2021

Setnor Byer Insurance & Risk

On January 1, 2021, Florida’s minimum wage will increase nine cents to $8.65 per hour. The minimum wage for tipped employees, which must be paid in addition to tips, is also increasing nine cents to $5.63 per hour. Florida’s minimum wage is adjusted annually for inflation. It has gone up $2.50 since 2005. Download Florida’s 2021 Minimum Wage Poster.

Florida’s Minimum Wage Act applies to those employees entitled to receive the federal minimum wage under the Fair Labor Standards Act. Employers must pay no less than the federal minimum wage or their state’s minimum wage, whichever is higher. Florida’s minimum wage in 2021 will remain higher than the current federal minimum hourly wage of $7.25.

Florida employers must make employees aware of their rights by prominently displaying a minimum wage poster in a conspicuous and accessible place wherever minimum wage employees are employed. Employees can sue for violations of Florida’s Minimum Wage Act, but they must first provide their employers written notice of their intent to sue, which must:

Employers then have 15 calendar days to pay all unpaid wages or resolve the claim to the employee’s satisfaction. Otherwise, the employee may file a lawsuit. The Florida Attorney General can also bring a civil action against employers. Each willful violation can result in a $1,000 fine.

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.

EEOC Releases 2014 Enforcement and Litigation Data

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing various federal equal employment opportunity laws. Every year the EEOC releases information about its enforcement and litigation efforts during the previous fiscal year (FY), which runs from October 1st to September 30th. This data can be used to get a better understanding of potential employment-related liability exposures that continue to pose a significant risk to most employers.

In FY 2014, the EEOC received a total of 88,778 charges of workplace discrimination, which is lower than recent fiscal years. There were 93,727 charges filed in FY 2013 and 99,412 charges filed in FY 2012. According to the EEOC, this decrease is due in part to the government shutdown during the first quarter of FY 2014.

The EEOC obtained $296.1 million in total monetary relief through its pre-litigation enforcement program in FY 2014, which is also lower than recent fiscal years. The EEOC obtained $372.1 million in FY 2013 and $365.4 million in FY 2012. Monetary relief from cases litigated in FY 2014, including settlements, totaled $22.5 million.

The total number of charges filed in FY 2014 can be broken down as follows:

  • Retaliation under all statutes: 37,955 (42.8%)
  • Race (including racial harassment): 31,073 (35%)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3%)
  • Disability: 25,369 (28.6%)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8%)
  • Religion: 3,549 (4.0%)
  • Color: 2,756 (3.1%)
  • Equal Pay Act: 938 (1.1%) [Note: Sex-based wage discrimination can also be charged as sex discrimination under Title VII.]
  • Genetic Information Non-Discrimination Act: 333 (0.4%)

The states with the most charges filed in FY 2014 were:

  • Texas (8,035)
  • Florida (7,528)
  • California (6,363)
  • Georgia (4,820)
  • Illinois (4,487).
  • Pennsylvania (4,045)
  • North Carolina (4,017)

It’s interesting to note that of the 88,778 charges filed, 57,376 were closed because the EEOC determined there was no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. This means that nearly 66% of employers had to endure an EEOC investigation despite the lack of reasonable cause to support a claim of discrimination. Since even baseless EEOC investigations can be expensive, employers should consider employment practices liability insurance to help cover the costs.

Employers can avoid the EEOC’s enforcement efforts by creating and enforcing a policy against discrimination and harassment. Employees must also be trained to prevent, detect and address any unlawful behavior. Training should cover all relevant topics, such as employment liabilities, sexual harassment for managers and employees, discrimination and harassment prevention and disability discrimination.

If you would like to learn more about controlling employment-related liabilities, check out The Human Equation’s library of online courses or contact us.

The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

Office Holiday Parties: Revel without Regret

Many employers consider a company-wide holiday celebration an excellent opportunity for employees to mingle socially and get to know one another better. It’s also a chance for senior management to interact with employees they rarely see throughout the year. Though holiday parties can create a positive work environment, increase employee morale and promote teamwork, they can also expose employers to a number of potentially significant risks.

Perhaps the most significant risks involve alcohol. What happens if an employee becomes intoxicated and causes damage to something or someone? Though liability is determined on a case-by-case basis, employers may face a greater chance of being held responsible if:

  • Attendance is, or is perceived to be, mandatory (e.g., everybody knows that being seen by the Vice President will enhance one’s chances of a promotion);
  • The employer pays for or provides the alcohol; or
  • The employer conducts business during the holiday party.

Employers can take steps to reduce their potential liability, such as:

  • Collect car keys from all who drink. Toward the close of the party, assign designated drivers or call taxis for anyone who is too impaired to drive. If the party is in a hotel, reserve a block of rooms for the inebriated to spend the night.
  • Appoint someone in a position of authority to monitor alcohol consumption; including making certain that no alcohol is served to minors.
  • Serve a limited amount of alcohol, controlled through “drink coupons.” (i.e., two drinks per person). Close the bar once dinner begins.
  • Send a memo to all employees prior to the party stating clearly that a) employees who arrive inebriated will not be allowed in; b) employees cannot bring their own alcohol; c) excessive drinking will not be tolerated; and d) intoxication and inappropriate behavior at the party will be grounds for discipline.
  • Do not permit supervisors or managers to buy alcoholic beverages for employees.
  • Hold the party at an off-site location and use professional bartenders to serve and monitor alcohol consumption.

There are other risks employers should consider when planning and holding the annual office holiday party, such as:

Discrimination and Harassment: Lines are often blurred during an office party, so they are often crossed. Conduct that is inappropriate at work may be considered appropriate at a party, such as engaging in intimate conversations or acts, giving a racy gift or telling an off-color joke. Employers may be held liable for unlawful harassment or discrimination that takes place during a holiday party, even if it’s off-premises and off-the-clock. Consider redistribution of the sexual harassment policy, and remind employees that a holiday party is no excuse for inappropriate behavior, which will not be tolerated.

Premises Liability: Employees are often allowed to bring spouses and significant others to the office holiday party. Every ‘plus one’ accompanied by an employee is a potential slip-and-fall victim. Employers must make sure the workplace is safe before the party and keep it safe during the party.

Workers’ Compensation: Employees are typically covered by workers’ compensation if they are injured in the course and scope of their employment. Though getting hurt at a holiday party wouldn’t seem to be work-related, an employee may be covered by workers’ compensation if attendance at the party is explicitly or implicitly required (or ‘encouraged’). Tell employees the holiday party is purely a voluntary social event, and mean it.

Employers should review their insurance policies before the party to make sure they are covered in the event something happens during the holiday party. General liability, employment practices liability and workers’ compensation insurance may cover some of the risks created by the office holiday party. However, other risks may require additional insurance coverage, such as a policy that covers one-time events, including alcohol-related liability, which may be available for a small additional premium.

If you would like more information about how Setnor Byer Insurance & Risk can help protect your business during the holidays and year round, please contact us.