Gordon Bass: So I’m talking to Tracy Sartorius underwriting manager and the EPL product lead at Argo Group.
Tracy Sartorius: Yes.
Gordon Bass: So Tracy, as underwriting manager and EPL product lead at Argo Group, what do you do?
Tracy Sartorius: Well, I underwrite management liability, including directors and officers, EPL, fiduciary and crime. , I do have a specialty in employment practices liability. So I’ve been helping the team with strategy, training, and I’ve also been a resource for some of the more complex risks.
Gordon Bass: Great. So, so EPL covers, it’s insurance that covers wrongful acts from employment, right? And that could be wrongful termination, sexual harassment, discrimination. But I imagine that during the time of COVID-19, there’s some additional challenges facing employers. Is that correct? And if so, what are they?
Tracy Sartorius: Sure. So you hit on a lot of the main exposures with regards to employment practices, meaning sexual harassment or disability compliance, and really COVID-19 creates a lot of new challenges in the same thing. So previously a safer environment in an office included perhaps just daily cleaning. But now it might include physical distancing. When you’re working from home, making sure that employees have resources available for any disabilities that they have and making sure that employees are engaging with managers and that no one is being inappropriate. Now that they’re more, they’re home and now in a more casual environment.
Gordon Bass: Right. What’s the first thing you think an employer should do during this time to lower their EPL risks or exposures?
Tracy Sartorius: Wow. Well, it really depends on the company. But I would say the main thing to focus on is always the employee safety. So, making sure facilities are safe if employees do need to go into work. And as you mentioned, that might include social distancing procedures or providing protective masks and gloves. And sometimes it’s just getting back to basics with encouraging employees to remember to wash their hands. Right. We always knew that that was important, especially in cold and flu season, but now it’s important in June.
Gordon Bass: Yeah. How do insurance carriers and brokers help policy holders work through these issues?
Tracy Sartorius: Sure. So I say the most helpful thing that a broker could do is to remind their insured to utilize outside counsel because we’re all moving very quickly and previously, if there was something like a layoff or a risk, you might have plenty of time to prepare. But now in COVID-19, when some companies are facing unprecedented challenges, they may need to move quickly and engaging counsel can make sure that they don’t miss any steps along the way.
Gordon Bass: Okay.
Tracy Sartorius: I’d actually say, another thing to encourage insureds to do is to … A lot of insurance carriers provide complimentary resources to their EPL policy. Argo, for example, has a Jackson Lewis hotline. So insurers could call the hotline and see if they do need to take next steps with counsel, whether internal or external and seek advice that way.
Gordon Bass: Great. Okay. So, following up on that in terms of the advice, right? So the Equal Employment Opportunity Commission has guidelines for how employers can talk to employees about their health status. So are there any takeaways for employers who are wondering what they can and can’t ask employees and what they can and can’t require during the coronavirus pandemic?
Tracy Sartorius: Certainly. And quite frankly, it’s a very fine line between what an employer can and cannot require of the employees. For example, employer is prohibited from asking the employee if he or she has a medical condition that would make them especially vulnerable to influenza or coronavirus complications for the CDC. Excuse me. This is because the weak or a compromised immune system can be closely associated with HIV or AIDS or cancer. The way to work around this is employers may ask about specific symptoms, such as fever. They could also phrase the question in conjunction with a non-health issues such as, “Would you like to request to work from home?” because of a compromised immune system or for caretaker purposes. And then the employee doesn’t need to confirm why they are requesting the assistance.
Gordon Bass: Got it. Well, what about prospective employees? Can an employer ask or require anything special of them?
Tracy Sartorius: Well, the procedures really mirror the standard anti-discriminatory practices. So similar to the ban-the-box rules, employers should not screen job applicants for COVID-19 symptoms until after making a conditional offer of employment.
Gordon Bass: Wow. Okay.
Tracy Sartorius: Also, … Yes. Also the screening process should be consistent for all new hires to ensure that there’s no perceived or actual discrimination taking place.
Gordon Bass: Okay. So the emergency Families First Coronavirus Response Act that was passed by Congress includes paid sick leave and extended or expanded family and medical leave provisions. What should employers pay particular attention to, to make sure that they’re complying with the act?
Tracy Sartorius: I would actually point to two things. So first I would make sure that the employer is correctly calculating our number of employees since it only applies to employers with fewer than 500 employees. So if you are accounting, certain subsidiaries or joint ventures to get yourself over the 500 mark, you want to be careful to make sure that you’re calculating it correctly.
Gordon Bass: Okay.
Tracy Sartorius: The second thing that I would recommend is to remind managers of the anti- retaliatory protections under the new law. Employers may not retaliate or terminate employees who take leave under the PSLA. And while it’s hard to imagine that any company would purposely do this, retaliation is still currently the most frequently filed discrimination charge of the EOC. It’s included in over 50% of all claims, and a few EPL law firms that I’ve spoken with expect this to have an uptick with employees who have been either sick or requested leave under this law.
Gordon Bass: is there any sort of gray area as we are two or three months into the coronavirus pandemic? Is there anything that has forced carriers or employers to think about that you maybe didn’t expect to think about or have to think about?
Tracy Sartorius: Something that has been interesting to me is making reasonable accommodations for employees who want to work from home. And I think that this will continue to be an evolving discussion as we even exit the pandemic because a lot of employees have now proven that they are capable of being efficient and productive while home. So the arguments against allowing employees to work from home in the future will be lessened.
Gordon Bass: That’s interesting. So if we’re all working from home, are there things that employers are going to have to do to make sure that remote working is running smoothly?
Tracy Sartorius: Some companies are offering training to managers right now to help keep an open dialogue with employees. And this is important not only for mental health, but team morale. You also want to make sure that employees are maintaining a professional work environment for their employees. As we are home for longer and longer, we become more casual and this might lead to more casual emails or phone calls or instant messaging. And quite frankly, you might even see issues with inappropriate Zoom conferencing or other video chats. There are already some claims in the door regarding the manager in the bathroom issue where people just forgetting what it’s like to be on camera in a professional setting.
Gordon Bass: That’s really interesting. So, let’s say that based on that, we don’t all work from home forever, and companies start encouraging employees to come back to the workplace. So is there anything that companies have to do or employers have to do before they allow employees to return to the workplace and then once they’re back in the workplace?
Tracy Sartorius: Well, this is actually another area where there could be a gray issue because currently right now, the law States that employers could require employees to have a doctor’s note to return back to work. However, some speculate that this will be particularly difficult in this pandemic because there’ve been a lot of issues with resources and accessibility to both testing and actually getting to the doctor’s office.
Gordon Bass: Last question. I’m curious, how is Argo accommodating its employees around the world during the pandemic?
Tracy Sartorius: Argo is doing a great job of keeping an open dialogue with employees. We have very frequent town hall meetings across the nation, and also managers are encouraged to keep open dialogues. I know that my manager checks in daily and sometimes has a more formal meeting with me on a weekly basis. And that’s been great. I know that I can always contact HR or my manager with any questions I have. They actually just sent out an email with an update on when we might return back to the office. I’m in New York City, which as you know, is likely the hardest hit right now and trying to return to normal life. So they’ve done a great job of communicating with us and making sure that we have everything that we need.
Gordon Bass: That’s great. And I hope that very soon, we all have the opportunity to decide whether we’re going to be working from home or back in the office because I don’t know about you, but I miss that personal interaction that makes me more productive, as much as anything else,
