EPIC Risk Advisory Bulletin
Volume 1, Issue 20
The global COVID-19 (coronavirus) pandemic remains both dynamic and fluid. We continue to see unprecedented disruptions at home and abroad. In this issue, we take a focused look at:
- General Information on Coronavirus
- Insurance Products and Coverage Information
- Insights Gained from July Renewals
- News of Note
- Human Resources and Employee Benefits
- Liability Protection Sticking Point of Potential Virus Aid
- OSHA Revises Employee Medical Records Rule
- EPIC Team Trains 1,000 for Nationwide Event
- Judge Expands Virus Paid Leave Rule
- Presumptive Compensability Legislation Update
- Insights from Across the Firm
The information presented here is intended to provide a high level overview of critical areas of concern for businesses around coronavirus. Consult your EPIC insurance broker for more in-depth guidance.
General Information on Coronavirus
The best sources overall for timely information on the coronavirus pandemic remain the Centers for Disease Control (CDC), the World Health Organization (WHO) and Occupational Safety and Health Administration (OSHA).
EPIC continues to compile resources to aid in understanding the impact of the pandemic on employers, their workforces and the management of risk.
Insurance Products & Coverage
Insights Gained From July Renewal Period
Mid-year renewal is a critical time of the year for many Insureds. With the coronavirus pandemic continuing to wreak havoc on the world, many insurance markets remain dynamic. EPIC released a report assessing the impact of the pandemic on insurance markets in June, and we have just released an update.
Highlights from the market update report include the following:
- Accountants Professional Liability: trending toward flat or higher rates
- Architects & Engineers: firming with broad range of outcomes
- Aviation: tightening with most renewals seeing increases of 20%-30%
- Casualty: rates rising in Automobile and General Liability lines; Workers’ Compensation pricing soft
- Construction: anticipates increase in rates and reduced capacity
- Environmental: favorable loss experience = steady coverage and rates; poor loss experience = re-underwriting
- Hospitality: hardening with Insurers fearful of Business Interruption claims
- Medical Malpractice: limits slashed; significant tightening resulting in premium increases
- Technology & Life Science Middle Market: pricing varies widely
Access the June and August market reports
Contact your EPIC broker for more information or for questions about your coverage.
News of Note
The passage of another two weeks has brought forth more developments across the insurance world. Here is a rundown of recent news stories of interest.
- Business owners can sue insurer over coronavirus losses, Reuters, Aug.12
- COVID-19 highlights limitations of fully insured health plans, Employee Benefit Adviser, Aug. 10
- Businesses thought they were covered for the pandemic. Insurers say no., New York Times, Aug. 5
- Coronavirus may lead to lasting cuts in transit service, Bloomberg, Aug. 3
- Insurers face possible British action over calculation of pandemic payouts, Reuters, Aug. 3
- The subway may be safer than you think, New York Times, Aug. 2
- Houston Rockets’ virus coverage claims face key hurdles, Law360, July 31
- Owner of Cheers files lawsuit over denial of business interruption insurance claims, Boston.com, July 31
HR & Employee Benefits Insights
Liability Protection Remains Sticking Point of Potential Virus Aid
Lawmakers in Washington continue to hammer out another potential aid bill aimed at providing relief to businesses and individuals from the ongoing coronavirus pandemic. The HEROES Act, which was passed by Congress in May, has now been considered by the Senate, and represented as the newly named HEALS Act.
Significant changes have been made to the original bill, which was put forth by the democratic-controlled House. One such change is the republican-controlled Senate’s insistence on strong liability protections for businesses.
Liability protections have become a major stumbling block to the passage of the bill. Lawmakers, workers and even professional athletes have voiced opposition to legal protections against lawsuits for corporations, hospitals and schools, arguing that liability shields are unfair to workers. Republicans continue to call for protections to be put in place to prevent lawsuits against employers on the grounds of contracting coronavirus at work.
On one side, trade and commerce groups argue incentives are necessary for employers and schools to ensure that after they have taken appropriate safety measures, they can bring workers back without fear of onerous litigation activity.
The HEALS Act proposes that all coronavirus-related work claims be directed to federal courts, where plaintiffs would have the right to bring personal injury and medical liability suits until 2024, or until the pandemic is no longer a public health emergency. Lawsuits would have to prove, however, that illness resulted from gross negligence or willful misconduct.
On the other side of the argument, lawmakers and labor unions feel it is unfair for workers to bear all the risk of returning to the workplace. They fear a liability shield would lead to an increase in negligent behavior on the part of employers. Thus far, the White House has not weighed in substantially on the issue.
The broad nature of the liability provisions put forth in the HEALS Act could result in employers using it to defend against claims involving changes to working conditions prompted by pandemic-related laws. It is unclear whether the bill, even if passed, would drastically change Workers’ Compensation (WC) cases, since nearly all work injury-related claims are litigated in state WC systems. Without being litigated as tort claims, the impact could be less significant than is currently feared.
For more information on this developing story, contact your EPIC team member.
OSHA Issues Revised Rule on Employee Medical Records
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) revised the Rules of Agency Practice and Procedure Concerning OSHA access to Employee Medical Records. The rule describes internal procedures OSHA must follow when obtaining and using personally-identifiable employee medical information.
In order to carry out its statutory obligations, OSHA often reviews employee medical records. Sometimes this occurs during a compliance inspection. In many instances, OSHA must examine and copy employee medical information in personally identifiable form.
OSHA amended several provisions of the regulation, the intent being to improve efficiency in terms of how it obtains and uses personally identifiable medical information. The final rule transfers the approval of written medical access orders (MAOs) from the Assistant Secretary for Occupational Safety and Health to the OSHA Medical Records Officer (MRO). Further, it makes the MRO responsible for determinations regarding the inter-agency transfer and public disclosure of personally identifiable medical information in OSHA’s possession. Additionally, it clarifies that a written MAO does not constitute an administrative subpoena.
Finally, it establishes new procedures for the access and safeguarding of personally-identifiable employee medical information maintained in electronic form. The revisions to the rule increase employee privacy and enhance OSHA’s ability to safeguard personally identifiable medical information.
Read the new rule in its entirety
For more information or assistance, contact your EPIC team member.
EPIC Team Trains 1,000 for a Nationwide Event
The coronavirus pandemic has strangled the life out of large, planned in-person events. Event planners and conference organizers have been forced to reimagine event planning, implementation and training.
Recently, EPIC’s IMPACT Training & Awareness team partnered with MLevel, a learning developing platform, to successfully train 1,000+ staff members that were handling the needs of a drive-in concert event at 350 venues across North America.
An innovative platform enabled the training to be sent to participants, who could self-register and log in to training from their mobile phones, tablets or desktop computers. Responses were tracked on an individual basis, enabling managers to review participation compliance and knowledge gaps onsite the day of the event.
The IMPACT Training & Awareness team created eight, five-minute custom training modules for the event on topics that included access control, CDC guidelines, addressing disruptive behaviors, loss prevention basics, first aid and risk assessment. Light gamification was included to reinforce topics with learners and was so effective that zero incidents occurred at the event. The team helped accomplish the training in just three days.
The results were remarkable, especially given that more than 350,000 people attended the drive-in concert event at 350 separate locations.
If you would like assistance training employees or staff for an event or workplace need, contact a member of the IMPACT Training and Awareness Team today. The team is available to help create, implement and track progress toward training goals.
Federal Judge Expands Virus Paid Leave Rule
When Congress passed the Families First Coronavirus Response Act (FFCRA) in March, one of its provisions was to provide employees unable to work due to coronavirus with federally subsidized paid leave. The Act obligates employers to offer sick leave and emergency leave to affected employees.
Likewise, the EFMLEA (Emergency Family and Medical Leave Expansion Act) entitles employees who must care for a dependent child due to coronavirus, to paid leave for a term of two weeks. When the law was implemented, however, the Department of Labor enacted an extraordinarily broad exemption to the paid leave requirements that has resulted in the denial of the leave law for nearly all healthcare workers.
Additional measures that contravened the law included banning workers from taking paid family leave or sick leave on an intermittent basis, unless approved by employers; and requiring extensive documentation when seeking paid leave.
Such was the argument from the New York attorney general in a lawsuit raised in the Southern District against the Department of Labor. Now, a federal judge has ruled that the restrictions hampering workers from accessing the federal leave paid program are illegal and must be removed.
In light of the ruling, workers who were previously denied leave or opted not to apply, may reconsider their actions and renew efforts to seek paid time off if they are ill with coronavirus. Appeals are expected and it is not immediately clear how employer responsibilities regarding the healthcare exemption are changed because of the ruling.
It is also unclear how businesses, which were struggling to offer paid leave due to a downturn in income and revenue, may be able to comply with the judge’s ruling.
Read the full, official guidance on the FFCRA employee paid leave rights law
For more information on this evolving story and how it may affect your business, contact your EPIC team member.
Presumptive Compensability Legislation Update
An ongoing issue affecting Workers’ Compensation is presumptive compensability legislation from states. At least 18 states have proposed workers’ compensation bills related to coronavirus, including expanding coverage for either frontline, essential or all workers. Some states have issued executive orders, bulletins, emergency rules and directives on workers’ compensation coverage for certain workers. It is a dynamic situation that warrants monitoring by employers.
The latest state to pass presumptive compensability legislation is New Jersey, which passed S.B. 2380 on July 30. The legislation amends the New Jersey Workers’ Compensation statute by creating a presumption of compensability for essential employees who contract coronavirus. In this situation, workers would receive benefits that include medical care, temporary disability benefits, permanent disability benefits and possibly dependency benefits should the employee die from the virus. The burden of proof shifts to employers to establish that the worker did not contract coronavirus in the workplace, which could be a tall task.
Other states have passed or failed to pass similar legislation. Tennessee’s Senate Commerce and Labor Committee just failed to pass a bill that would have made coronavirus an occupational illness in the state. A similar bill is now being considered by the Tennessee House of Representatives. In Nevada, Governor Sisolak signed into law a bill that limits the liability of employers who follow coronavirus protocols and create additional worker protections.
An excellent resource for staying current on legislative activity is the National Council on Compensation Insurance (NCCI) site. NCCI is tracking state compensability presumption legislation and updates state statuses weekly. Its coronavirus workers’ compensation compensability presumptions chart is updated weekly with developments around state legislative activity. Access the chart
Ogletree Deakins has assembled a searchable table to track which states have implemented or proposed amendments to state workers’ compensation statutes. The table also addresses workers’ compensation benefits for health care workers and first responders. Access the table
For more information, contact your EPIC team member.
Insights From Across the Firm
EPIC thought leaders have written numerous articles on matters relating to coronavirus, all of which are available on EPIC’s website. Those most recent articles include:
- What’s on Employers’ Minds Regarding Employee Benefits, August 4
- Checklist for Strategic and Compliant Employee Benefit Plan Communications, August 3
- Biometric Data: Promise and Peril, August 3
- PPP Loan Insurance, July 30
- Executive Orders Aimed at Drug Costs Miss the Mark, July 30
Conclusion
Our understanding of coronavirus and its impact around the world continues to evolve at a rapid pace. This newsletter briefly touches on issues that businesses may want to consider as they approach their response to novel coronavirus. More topics will be considered in future issues as our understanding of the virus and its impact continues to evolve. Please reach out to your EPIC broker for more information.
For all of EPIC’s coronavirus coverage, visit epicbrokers.com/coronavirus
Disclaimer: This has been provided as an informational resource for EPIC clients and business partners. It is intended to provide general guidance on potential exposures and is not intended to provide medical advice or address medical concerns or specific risk circumstances. Due to the dynamic nature of infectious diseases, EPIC cannot be held liable for the guidance provided. We strongly encourage readers to seek additional safety, medical and epidemiological information from credible sources such as the Centers for Disease Control and Prevention and the World Health Organization. Regarding insurance coverage questions, whether coverage applies or a policy will respond to any risk or circumstance is subject to the specific terms and conditions of the policies and contracts at issue and underwriter determinations.
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