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Avoiding Pitfalls:

Watch out for these

HR-related Liabilities

Whitney Herrington, Partner

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Learning Outcomes

Develop awareness of key, but overlooked liability issues in human resources

Discuss benefits, opportunities, and challenges with various HR liabilities

Facilitate peer learning to share actions/programs nonprofits have used to minimize liabilities

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Agenda

• Introductions

• Overview of key liability issues

• Short-term disability

• Long-term disability

• Employment practices liability

• Workers’ compensation

• Employee references

• Wrap up & questions

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Core Beliefs & Norms

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CORE BELIEFS

We believe in collaboration.
We take a learning stance to disrupt the traditional expert-learning model.
We recognize & name the complexity of power building work.
We aspire to change structural limitations.

NORMS

What is said or learned here should stay here—we want to create a safe space to ask questions.
We are recording to share the presentation with others—but we will stop recording during the Q&A section
Data helps us learn. We appreciate your responses in polls throughout the training.
Take care of yourself - do what you need to do to care for yourself during the webinar

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Overview of Key Liability Issues�

Short-term liability
Long-term liability
Employment practices liability
Workers’ compensation
Employee references

Short-term and long-term disability:

Although illnesses and injuries can't be predicted, they're likely to affect your workplace at some point in the future. For comprehensive protection, employers may consider offering a combination of both short-term and long-term disability insurance to employees. These policies are an important complement to any group health insurance plan and help to minimize the impact of debilitating illnesses and injuries on both your employees and your organization.

Employment practices liability:

The reality is that your organization doesn’t have to actually do anything wrong and can still be sued. Someone just has to say you did.

Workers’ compensation:

As your teams are now mostly working remotely, and as you have more staff on the ground for election season, there’s lots to think about when a staff member gets injured or becomes ill as a direct result of their job. We’ll talk more about this and how to handle.

Employee references:

This is a seemingly benign issue, but that is sneaky in its impact when it shows up. I’m sure many of you have offered and given positive references when a staff member asks. We want to talk about what happens when an employee didn’t leave on such good terms? What if you’re approached for an “off-list” reference from an outside colleague? We’ll talk about the impact of these decisions.

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Short-term Disability

Benefits

Helps protect employee from financial hardships during a recovery period
Can provide an opportunity for time off and pay to deal with a medical issue
Provides financial flexibility for an organization to maintain continuity in work

Definition

A type of insurance that (usually partially) covers income for people who need to take time away from work because they are unable to perform their job duties due to illness, injury, or other disability.

Typically, injuries and illnesses covered through short-term disability insurance are temporary in nature and can include:

Pregnancy
Surgery rehabilitation
Severe illness

Benefits:

Helps to protect the employee from financial hardship during the recovery period by providing temporary income for routine expenses.
Unless you live in a particular state, FMLA does not apply to your organization. STD can provide opportunity for time off and pay to deal with medical issues.
Many of you have limited policies or capacity to allow staff to take off significant time when a medical issue occurs. Provides financial flexibility that would allow the organization to pay for a temporary replacement without incurring excessive labor costs.

Note: Some states, such as California and New York require employers to provide short-term disability coverage to all employees. There may also be a state-sponsored disability plan.

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Short-term Disability (cont.)

Consider

There’s usually an elimination period (a short waiting period)
Most STD policies provide benefits for 3-6 months
Check with your PEO or fiscal sponsor to see if STD is available.

Cons

Typically, only covers partial income (40-70% of pay up to a threshold)
Can be exclusions for preexisting conditions or intentional/foreseeable injuries
Usually don’t provide benefits if the covered employee is not the one with the illness

Cons:

Typically, only covers partial income (usually 40-70% of pay up to a certain threshold)
There can be exclusions for preexisting conditions or intentional or foreseeable injuries (such as those inflicted during the commission of a crime).
Most STD plans do not provide benefits if the covered employee is not the one with the illness.

Usually an elimination period – a short waiting period – usually 14 days before the employee can start collecting benefits from the policy. Employee much provide a medical form signed by a doctor that details the illness or injury.
Most STD policies provide benefits for three to six months. If an employee needs additional coverage beyond the STD period, a LTD policy may be needed to extend the benefits.
Check with your PEO or fiscal sponsor to see if this is provided. Otherwise, you can engage a private insurance broker to help set-up.

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Long-term Disability

Works similarly to STD, just for a longer period
Often works in tandem with short-term disability to provide income for long-term illness and injuries
LTD is often only awarded if the employee is unable to do any job
Qualifying events may include chronic pain, cancer treatments, or debilitating illness or injury lasting more than 26 weeks
Most LTD plans provide coverage for up to 36 months
Elimination period is usually 90 days.

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Employment Practices Liability

Employment practices liability (EPLI) can help mitigate an employer’s financial exposure to employment practice disputes and litigation

The average cost for defending and settling employment law cases is $100k+

Usually covers discrimination, sexual harassment, wrongful termination, retailiation claims and other workplace torts (defamation, libel, slander, etc.)
Usually covered by your PEO and fiscal sponsor

Employment practices disputes have become one of the fastest growing sources of litigation. In the event that an employee brings charges against an organization, employment practices liability insurance (EPLI) can help mitigate an employer’s financial exposure.
The reality is that your organization doesn’t have to actually do anything wrong and can still be sued. Someone just has to say you did.
Usually covers discrimination claims, sexual harassment claims, wrongful termination claims, retaliation claims, other workplace torts (defamation, libel, slander, etc.).
The average cost for defending and settling employment law cases is $100k+.
Nearly 100k workplace discrimination claims are filed with the EEOC, and 50% of those are against small and mid-size employers, with the common target being orgs with 15-100 employees.
Usually covered by your PEO, may be covered by fiscal sponsor. Can be purchased by a private insurance broker.

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Workers’ Comp

Employers pay for this insurance and benefits are paid by the employer’s insurance carrier
Usually required for remote, part-time, and temporary employees
Know typically requirements for claim processing:

Injured or ill employees should be encouraged to notify the organization promptly and employers should make sure they get immediate medical care
Contact your workers’ comp provider to submit a claim
Insurance company reviews the claim and approve/deny benefits
Most states have a time limit for when your employee can report a workers’ comp injury. Usually 30-90 days.

Definition

Insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job. It must be a work-related injury.

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Workers’ Comp (cont.)

Remote workers are typically covered under workers’ comp policies if the injury or illness occurs while an employee is completing a work task during work hours or under the responsibilities of their job
Most common work-from-home injuries:

Cumulative injuries (i.e., carpal tunnel, back pain, eye issues from monitor glare)
Slips, trips, and falls while working from home
Personal comfort doctrine – an injury is compensable if the employee was engaging in activities necessary for their personal comfort or welfare and part of “normal working conditions”

Consider psychiatric mental stress claims
COVID-19 is an ongoing and ambiguous situation

Remote workers are typically covered under workers’ comp policies if the injury or illness occurs while an employee is completing a work task during work hours.

Remote worker has the burden of proof, meaning that they must be able to demonstrate that they were acting in the interest of their employer at the time they got sick or injured. This is significant because the employer does not have control over an employee’s home environment.

Most common work-from-home injuries

Cumulative injuries – damage and pain caused by repetitive movement and overuse – muscles, tendons, and nerves, usually from poor ergonomics at the workstation. Examples are: carpal tunnel syndrome, back pain, eye issues from monitor glare.
Slips, Trips, and Falls While Working from Home – trips from computer or phone charging cords, falls when taking the stairs.
Personal comfort doctrine – an injury is compensable if the employee was engaging in activities necessary for their personal comfort or welfare and part of “normal working conditions.” Activities can including eating lunch, injuries while getting water or coffee, going to the bathroom, and even taking a break for a smoke.

Consider psychiatric mental stress claims

Workers' compensation generally covers diseases that employees contract because of their work—or in legal jargon, occupational diseases "arising out of and in the course of employment" (AOE/COE). Although common infectious diseases like the flu aren't considered occupational illnesses, COVID-19 might be treated differently in some cases.

Specific eligibility requirements for occupational diseases vary from state to state, but you typically need to demonstrate that:

the particular nature of your job caused your illness or put you at a higher risk of exposure to the virus than the general public, and
you contracted the illness as a result of a specific exposure that happened while you were doing your job.

When an infectious disease becomes widespread in the community, as in the case of the coronavirus pandemic, it can be particularly difficult to meet both of those requirements.

“Even if the claimant could establish successfully that COVID-19 was contracted at work, which seems unlikely, the claimant would still be required to prove that there was something specific about their work that increased their risk of contracting COVID-19.” Workers’ comp usually does not compensate individuals just because they are hurt or injured while working. Work has to be the prevailing cause of why the individual got hurt or contracted COVID-19.

The vast majority of COVID-19 claims will probably be unsuccessful because the disease is a general hazard to everyone worldwide, irrespective of employment. Individuals are exposed to it both at work and everywhere else. Some states have ruled out workers’ comp coverage when employees contract contagious diseases from co-workers or when they would’ve been equally exposed outside of work.

In a few states, you still might be able to qualify even if your job isn’t considered particularly high risk, as long as you have strong medical evidence of workplace exposure. You’ll want to check with your workers’ comp insurance for the states your staff reside and work to understand how COVID-19 affects workers’ comp.

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Employee References

Be careful about making oral or written statements that disparage an employee in terms of work performance, criminal conduct, etc.
Document references given and the basis for the reference
Consider a common standard or policy for the type of information you’ll provide as the “organization” providing a reference
Differences between a “personal-professional reference” and the “organization’s” reference but questions still exist

“Off-list references”
Who’s giving the reference (particularly in a negative context) and their role in the org

Could be considered defamation (libel or slander) complaint, lost wages, etc.

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Questions?

What would you like to chat more about and how?

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Closing

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UPCOMING TRAININGS

Compliance Defined

Tuesday, August 23, 2022 @ 12PM (PST)/3PM(EST)

Selecting the Right Legal Entity for Advocacy In Election Years

Wednesday, August 31, 2022 @ 12PM (PST)

In the Weeds With Compliance

Tuesday, September 14, 2022 @ 12PM (PST) / 3PM (EST)

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