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Survey Report

Insurance Marketplace Realities 2022 Spring Update – Employment practices liability

April 7, 2022

While the employment practices liability (EPL) rate environment is slightly improving, we expect COVID-19 employment-related litigation to keep increasing.
Talent|Workers Compensation
N/A
Rate predictions: Employment practices liability
  Trend Range
Primary (domestic markets) Increase (Purple triangle pointing up) +5% to +15%
Bermuda markets Neutral increase (yellow line, purple triangle pointing up)
Flat to +10%

Key takeaway

While the employment practices liability (EPL) rate environment is slightly improving, we expect COVID-19 employment-related litigation to keep increasing as companies formalize return-to-work/remote work policies, which may include company-imposed vaccine mandates.

We expect the EPL market to continue to be challenging through 2022.

  • The extent of rate increases will be determined by many factors, particularly industry, loss history and location of employees. Assuming no change in risk profile and no losses, rate increases are more likely to be at the lower end of the range provided above. California continues to be the most problematic jurisdiction. New Jersey, New York and Florida continue to be challenging as well.
  • Retentions: Expect continued pressure on primary retentions, as well as separate retentions for class actions, especially in California. Expect separate retentions for California claims and for highly compensated employees (particularly in healthcare and financial institutions).
  • Limits: Many domestic markets are looking to reduce their limits to $5 million.
  • Excess: As in other lines, excess EPL markets are following primary increases in addition to looking to correct increased limit factors (ILFs).
  • Capacity: Overall capacity in the EPL market is stable, but it is becoming more limited for the industries that have been most strained (i.e., healthcare, retail, hospitality and leisure) by COVID-19. Lack of competition for these risks is contributing to rate increases.
  • Underwriting: Expect a significant number of questions related to COVID-19 return-to-office plans and vaccine mandates.
  • Coverage: Coverage remains intact; carriers continue to add privacy/biometrics exclusions and include limited COVID-19 exclusions on a case-by-case basis.

As of January 13, 2022, vaccine mandates are currently in the hands of the employer.

  • The U.S. Supreme Court issued a stay on the Department of Labor’s Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS, released on November 4, 2021, had mandated COVID-19 vaccinations or at least weekly testing for workers at companies in the U.S. with 100 or more employees, subject to legal exemption. Subsequently, OSHA announced that it was withdrawing the ETS as an enforceable emergency temporary standard, but not as a proposed rule.
  • Employers not covered by another federal, state or local vaccine mandate are free to implement whatever policies and practices are best suited to their workplace.
  • Employers who choose to maintain workplace vaccination policies must still follow other applicable laws, such as Title VII and the Americans with Disabilities Act, and be cognizant of requirements in the various states.
  • If an employer can legally implement a vaccine mandate, plaintiffs may challenge whether the employer is properly considering accommodation requests.
  • Religious accommodations: Courts are now examining the threshold issue of what is an undue hardship on an employer in a religious accommodation case and whether standards should be brought in line with those used in disability claims. We have seen an uptick in such failure-to-accommodate claims.
  • Disability accommodations: With the return to work in 2021, employers have received an increase of accommodation requests. The EEOC has provided guidance on what employers should be aware of when faced with an employee’s request for an accommodation.

COVID-19 employment-related litigation continues.

  • We continue to see an increase in litigation and claims related to COVID-19. More than 4,400 cases have been filed thus far, with healthcare and retail continuing to be the most affected industries.
  • Retail and healthcare have also seen the most COVID-related class action activity.
  • California has seen 83 COVID-19-related class action lawsuits filed, followed by Ohio and Illinois with 16 each, and Florida with 15.

Socially driven movements, such as Black Lives Matter, pay equity and #MeToo continue to produce claims that impact employment practices liability litigation and legislation.

  • In the wake of #MeToo, President Biden recently signed a law that amends the Federal Arbitration Act and bans mandatory arbitration agreements covering sexual harassment and sexual assault claims.
  • The bill provides that employees who are parties to arbitration agreements with their employers have the option of bringing claims of sexual assault and sexual harassment in arbitration or court. When an employee chooses to file a sexual assault or sexual harassment claim in court, the court, rather than an arbitrator, will decide whether court is the proper forum for the claim.
  • We anticipate that employers with arbitration agreements in place will in the future see more sexual assault and harassment claims filed in court rather than arbitration.
  • Insureds should continue to expect questions from underwriters regarding inclusion, diversity and equity initiatives.
  • In relation to pay equity, there has been a push to require employers to offer pay transparency for applicants and employees. Many states, including California, Rhode Island, Maryland, Washington, Connecticut and Colorado, are implementing laws wherein employers must disclose the pay range for applicants.

States continue to introduce their own biometric privacy laws.

  • The Illinois Biometric Privacy Act (BIPA) has been the subject of many class action claims against organizations with employees in the state of Illinois. We have since seen other states, including Texas and Washington, implement their own biometric laws (although neither of these laws creates a private cause of action). New York City and Portland, Oregon have similar laws which do include a private cause of action.
  • The U.S. Court of Appeals for the Seventh Circuit has clarified the federal standing requirements for claims brought pursuant to BIPA, thereby providing a road map for plaintiffs who wish to steer clear of federal court.
  • We continue to see many EPL policies include an exclusion for BIPA claims; however, buyers can look to other coverage lines, such as general liability and cyber, for potential coverage for this exposure.

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).

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Contacts

National Employment Practices Liability Product Leader,
FINEX North America

Associate Director — Claims Advocate, FINEX North America

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