ILMA Compoundings - July 2020 - 37

not cause apparent physical damage,
some courts have found that "invisible" damage to property caused by
pathogens in HVAC units or water
heaters can fall within the scope of
insurance policies. The same reasoning applies to contingent business
interruption insurance, also known
as supply chain insurance, which
provides coverage for delays caused by
third-party suppliers facing business
interruptions. Typically, this coverage
extends the same provisions as the
policyholder's policy, and they may
face the same issues.
D&O insurance indemnifies a company for lawsuits arising from alleged
wrongful acts of its executives. Claims

would arise via lawsuits for mismanagement of COVID-19 response,
and they can come from customers,
employers or shareholders. D&O policies protect the individuals in charge
of a corporation, and they can provide
an alternative mechanism to seek relief
even if protected from liability.

Continued from page 34
Keep in mind that no one has all the
right words to address workplace
inclusion and equity, or the disparities
and atrocities in our society. However,
it remains the leader's responsibility
to convey care and concern for all
employees, especially those in targeted
groups. This means more than resting
on the company's diversity statements.
Dr. Martin Luther King Jr. put it this
way: "In the end, we will remember
not the words of our enemies, but the
silence of our friends."
Education remains the critical part
of the solution. Most ILMA members spend a lot of time and money
on employee workshops and other
training - both in-house and with
third parties - on a wide range of
topics. For example, sexual harassment
training often is required for regulatory
compliance and insurance requirements. Such training can be expanded
to include education on racial equity,
workplace diversity and maintaining
lines of communication between
employees and management on race
issues. This education helps individuals
recognize their own personal prejudices

and subtle bias in the workplace. Even
if the conversations remain difficult to
navigate, education on race should be
regular and consistent.
Common sense dictates that, for
education to make a difference, the
company's policies, procedures and
practices - and strategic plan -
must be reviewed and revised to
ensure fairness and equity. Diversity
and inclusion goals need to be clearly
articulated. In such a review, it is easy
to overlook some key issues, such as
whether the company has an objective
process for how work assignments are
equitably made and equal opportunities for employee promotions. Review
how pay is determined and whether
it makes sense to conduct a pay audit.
Does the company have in place a
system to ensure that qualified job
candidates of different racial or ethnic
backgrounds have an equal chance of
being selected for open positions?
Many companies have employee
referral hiring programs. However, it
is easy to see how workers referring
"someone like me" can create issues,
including during the hiring process
and performance evaluations. This halo

A LOOK FORWARD
Despite the prevalence and infectivity
of the coronavirus and the inability to
effectively trace and test, companies
are seeing lawsuits based on infected
customers or visitors. While Congress
continues to drag its feet on additional
COVID-19 financial relief, Senate
Majority Leader Mitch McConnell
(R-Ky.) asserted that any next bill will

have to include a national policy of
general liability protection. Even if
passed, the protections will only cover
the novel coronavirus and will not do
anything to encourage insurance protections to offset future disease outbreaks,
nationally or at a singular facility. Be
aware that exclusions may be not readily
apparent when renewing policies - if
there is anything to be learned from the
pandemic, proactivity is the key.
Levetown serves as
associate counsel to ILMA
through Bassman, Mitchell,
Alfano & Leiter Chtd.
He may be reached at 202-466-6502 or
mlevetown@bmalaw.net.

effect can result in uneven application
of what should be criteria objectively
applied. Recognizing how these unconscious biases can take hold and can
create advantages and disadvantages in
the workplace will allow the company
to not only ensure it has the necessary
knowledge and skills in the workplace,
but also to address some of the issues
that employees bring to the workplace.
It also allows for more effective structures to be put in place to mentor and
grow junior employees.
It is hard to write a prescription to
eradicate racism in the workplace in
the space that I have been allotted.
I have tried to give you some ideas
as we all strive to see our neighbors,
co-workers and employees, to whom
we owe a duty of love, through different lenses so that we can transform
our organizations and society to more
fully recognize human dignity and to
truly establish equal justice.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

37
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