EPIC Risk Advisory Bulletin
Volume 2, Issue 3
In this issue, we take a focused look at:
- Supply Chain and Business Risks
- UK Extends Loan Schemes, Will the US Follow Suit?
- TSA Implements Executive Order Regarding Face Masks
- Canada Introduces Further Restrictions on International Travel
- Insurance Products and Coverage Information
- Entertainment Insurance
- Business Interruption
- Presumptive Compensability
- News of Note
- Human Resources and Employee Benefits
- President Biden Asks DOL to Consider New Workers Rights
- OSHA Releases Guidance on Vaccinations
- 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.
Supply Chain & Business Risks
UK Extends Loan Schemes, Will the U.S. Follow Suit?
In December 2020, the U.K. government extended assistance for large and small businesses through March 2021. Those programs consist term loans, revolving credit facilities, invoice finance, and asset finance, which must be repaid, and aim to get credit moving to businesses in need during the pandemic.
In the U.S., President Biden has put forth the American Rescue Plan, with wide-ranging assistance and stimulus for workers and businesses. The $1.9 trillion proposal includes aid and lending measures designed to stabilize the economy. Specifically, Biden’s proposal targets small businesses in hard-hit industries including restaurants, hotels and the arts, with grants and government funding.
With a $35 billion investment in state, local, tribal and nonprofit small business financing programs, Biden’s plan seeks to generate as much as $175 billion in low-interest loans and venture capital. Biden has also said he wants to work with Congress to ensure restaurants, bars and other disproportionately-impacted businesses will have the support they need to keep their doors open, through the Community Credit Corporation at the U.S. Department of Agriculture.
In the interim, states are attempting to pass legislation to get aid to struggling workers and small businesses. In New York, the state assembly is expected to pass bills that would allow workers to collect unemployment insurance while working part time, and protect small businesses from being charged higher rates for unemployment insurance when they reopen. Specifically, the bill would exclude small businesses from extra unemployment insurance charges if they were forced to close or reduce their workforce after March 12, 2020.
For more information, contact an EPIC broker.
TSA Implements Executive Order Regarding Face Masks
The Transportation Security Administration (TSA) will implement provisions of President Biden’s Executive Order, Promoting Safety in Domestic and International Travel by requiring travelers to wear face masks when they are in airports, bus and rail stations, as well as while on passenger aircraft, public transportation, passenger railroads, and over-the-road buses operating on scheduled, fixed routes. TSA’s action will also support the Centers for Disease Control and Prevention (CDC) Emergency Order requiring that individuals wear masks on conveyances and at stations, ports, or similar transportation hubs.
As of February 2, 2021, TSA requires individuals to wear a mask at TSA airport screening checkpoints and throughout the commercial and public transportation systems. This requirement will remain effective until May 11, 2021.
Contact EPIC Transportation & Logistics Risk Control for more information.
Government of Canada Introduces Further Restrictions on International Travel
The Government of Canada has introduced new measures to limit the spread of coronavirus and new variants of it into Canada. The Canadian government and airlines have reached an agreement to suspend all flights to and from Mexico and Caribbean countries until at least April 30, 2021. The flight restrictions come into effect as of January 31, 2021.
Additionally, effective midnight February 3, 2021, in addition to proof of a negative pre-departure test, Transport Canada will expand existing international flight restrictions, funneling scheduled international commercial passenger flights into four Canadian airports: Montréal-Trudeau International Airport, Toronto Pearson International Airport, Calgary International Airport and Vancouver International Airport.
As soon as possible in the coming weeks, all air travelers arriving in Canada, with very limited exceptions, must reserve a room in a Government of Canada-approved hotel for three nights at their own cost, and take a coronavirus molecular test on arrival at their own cost. More details will be available in the coming days.
Contact EPIC Transportation & Logistics Risk Control for more information.
Insurance Products & Coverage
Entertainment Insurance Update
As the global entertainment business continues to reel from shutdowns and restrictions related to the coronavirus pandemic, virus insurance continues to prove an elusive target in the U.S. While Hollywood only recently received aid (December 21) from the U.S. government to offset losses accrued by theaters and live events venues, international efforts have been more pronounced.
In many other countries, long-term solutions are being sought, beyond emergency aid. The UK has put forth its Film and TV Restart Scheme in an effort to fill the gap left by insurance companies that have pulled out of the pandemic insurance market. Canada, Australia, France, Austria and now, India, are all taking similar steps.
Film production is on the rise in India, where insurers are receiving two proposals a day. While coronavirus-related risks are excluded from coverage terms, filmmakers are finding facultative reinsurance from global underwriters to be a solution. Productions shot in a contained environment with a small staff are sometimes able to find placement. Still, half of India’s theaters remained closed and the industry overall, continues to struggle.
Looking ahead, government-backed insurance programs are most likely to create a significant, positive impact on the film and television production industry. Companies without sufficient capital to self-insure productions are going to continue to struggle to find coverage, and without government assistance, worldwide film production will likely slow.
For more information, contact an EPIC broker.
Business Interruption Update
The UK Supreme Court ruling that insurers must pay coronavirus-related business interruption claims, could have ripple effects across the pond, in the U.S. Legal experts now believe a path exists for businesses of all sizes to claim payouts under business interruption policies for losses related to the coronavirus. The ruling was a resounding win for policyholders, who were a mix of brokers and class action groups of small to medium-sized businesses. The ruling is expected to impact nearly 400,000 policyholders with 700 types of policies issued by 60 insurers, and to result in excess of $1.36 billion in claims payouts.
At stake was whether or not non-damage policy language in property business interruption policies not specifically mentioning coronavirus or a pandemic could trigger coverage. Not all policy language variations were considered, but for the ones that were, policyholders were granted broad coverage.
One issue not taken up by the Court was whether or not coverage is available under physical damage property wording. The Court’s ruling is final and cannot be appealed. As such, all of the insuring clauses at issue on the appeal will now trigger coverage for insureds. Both landlords and tenants could have pathways to pursue payouts under the new ruling.
The business interruption (BI) policies involved in the UK case were similar to American BI policies, which also define loss as “physical loss,” “physical damage,” or “property damage.” Interestingly, the UK Supreme Court did not analyze those terms. Instead, it considered whether three policy extensions offer coverage (disease clauses, loss of access clauses, and hybrid clauses). When compared to American law, the UK ruling is similar to a legally-binding advisory opinion; the Court emphasized its general ruling was subject to specific policy language, exclusions and evidentiary burdens.
At issue in the U.S. has been whether insureds’ loss of use of business premises because of government-imposed shutdowns and / or restrictions constitute a direct physical loss or physical damage to the property. Most cases have found that shutdowns do not, and therefore, that BI policies do not have to provide coverage. With the UK ruling silent on that particular policy language, it is unclear how much impact it will have on American cases going forward.
While insurers notched many victories in early court cases, recent rulings across the country have delivered some wins to policyholders, who may now feel emboldened to bring their cases to court. In Ohio, the Henderson Road Restaurant Systems and related companies operating restaurants in Ohio, Michigan, Florida, Indiana and Pennsylvania won a case in which the judge rejected the insurer’s argument that microorganism exclusions did not apply, since the losses were caused by government shutdown orders and not the virus itself.
In Oklahoma, a state court granted partial summary judgement for the Cherokee Nation in its coronavirus-related business interruption claim. At issue was whether the claimant’s all risks policy provided coverage for coronavirus-related losses. The Cherokee Nation argued a distinction exists between physical loss and physical damage. The court agreed, finding the Cherokee Nation’s claim plausible and ruling that insurers had failed to manifest any exclusions that would bar coverage. The court cited Elegant Massage LLC v. State Farm in its decision.
Presumptive Compensability Legislation
States continue to introduce coronavirus presumptive compensability legislation. On January 22, Oklahoma lawmakers introduced legislation that would make it easier for first responders contracting coronavirus to receive workers’ compensation. House Bill 2236 would amend Oklahoma workers’ compensation law by creating a rebuttable presumption that police officers, firefighters, emergency medical technicians and volunteer firefighters who contract coronavirus did so within the scope and course of their employment. If passed, the legislation would apply to any claim filed on or after the bill’s effective date.
Lawmakers in North Dakota, Virginia and Hawaii introduced similar legislation. In North Dakota, House Bill 1433 would create a rebuttable presumption for 34 professionals considered to be essential. Those positions include transportation, government and health care workers. If passed, the law would be effective until July 31, 2023.
In Virginia, House Bill 2207 would apply presumption to the same categories of workers as the Oklahoma bill, but with the addition of correctional officers. Virginia’s bill would apply to workers infected with coronavirus between March 12, 2020 and December 31, 2021. In Hawaii, an illness would be considered compensable if an employer fails to maintain adequate workplace protections against exposure to coronavirus.
Similar laws in various stages of consideration across America could have wide-ranging impacts on workers’ compensation, particularly in the health care industry, where workers are at the greatest risk of contracting coronavirus. A study published by the Journal of Occupational and Environmental Medicine found that 87.3 percent of the 21,336 coronavirus-related workers’ compensation claims filed in 11 Midwestern states were submitted by health care workers. Medical laboratories, hospitals and nursing homes were found to have higher incidents of claims.
On the west coast, insurers providing workers’ compensation in Oregon will have to conduct a reasonable investigation before denying a coronavirus-related claim. This is according to new guidance issued by the Oregon Department of Consumer and Business Services, Workers’ Compensation Division, which became effective on February 1, 2021. Insurers will also be required to issue a report to state regulators when five or more coronavirus-related claims are filed, which will trigger a state audit of the insurer’s claims.
Before issuing denials, insurers must examine whether there was likely exposure to coronavirus arising out of and in the course of the claimant’s employment. Insurers must also investigate the source of the exposure, obtain a medical or expert opinion that the claimant tested positive for coronavirus or has a medical service provider’s diagnosis of a presumptive positive. Potential civil penalties could be imposed on insurers that do not comply with the new measures.
Coronavirus Legislation by State, Territory and Locality
The National Law Review has compiled a helpful list of the state, territorial and local government policies proposed or passed in response to the ongoing coronavirus pandemic.
It is organized by state and available online
For more information, contact an EPIC broker.
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.
- Live Nation Sues Insurance Company for Not Covering COVID-19 Claims, Billboard, Feb. 2
- House Subcommittee to Probe Meatpacking Virus Outbreaks, Business Insurance, Feb. 2
- Insurers face ‘mind-blowingly’ large loss if Olympics cancelled, Reuters, Jan. 27
- Nursing home critics say COVID-19 immunity laws are a free pass for neglect, NPR, Jan. 26
- Global life insurers impose restrictions, worried about long-term pandemic risks, Reuters, Jan. 25
- If COVID-19 Didn’t Teach You These Resiliency Lessons, You Better Start Learning Them, Risk & Insurance, Jan. 25
HR & Employee Benefits Insights
President Biden Asks DOL to Consider Granting Workers New Coronavirus-Related Rights
In his American Rescue Plan, President Biden has proposed a number of measures to provide aid to businesses and workers hard hit by the coronavirus pandemic. Two such measures aim to extend rights to workers. In one, the President is asking the Department of Labor to consider clarifying that workers have a federally-guaranteed right to refuse employment that will jeopardize their health; if they do refuse work under such a circumstance, those workers would still qualify to receive federal unemployment insurance.
Additionally, Mr. Biden’s plan asks employers to provide back hazard pay to frontline essential workers. Those who work in grocery stores, harvest crops, and in the health care industry, in particular, are spotlighted for increased pay. The President plans to call on CEOs and business leaders to take action by providing back hazard pay to their employees. He is also asking Congress to provide $350 billion in emergency funding for state, local and territorial governments to keep frontline workers on the job and paid. He proposes $3 billion of that aid to go to the Economic Development Administration (EDA) to issue grants directly to state and local government entities, tribal governments, higher education institutions and nonprofit organizations.
Since the President’s proposal requires Congressional approval, time is necessary to see if these measures become reality. For more information, contact an EPIC broker.
OSHA Releases Vaccination Guidelines for Employers
On January 21, President Biden issued an executive order directing the Occupational Safety and Health Administration (OSHA) to issue clear guidance for employers on how to protect workers from the coronavirus. In response, OSHA issued workplace safety guidance for employers that followed those mandates, including a recommendation that employers cover coronavirus vaccination costs for employees.
In addition to calling on employers to pay for coronavirus vaccines for workers, OSHA is recommending that employers not distinguish between vaccinated and non-vaccinated employees. Additionally, OSHA recommended employers implement the following steps in their workplaces:
- Conduct a hazard assessment.
- Identify control measures to limit the spread of the virus.
- Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home.
- Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers.
- Implement protections from retaliation for workers who raise coronavirus-related concerns.
Overall, the recommendations are designed to reduce the risk of transmission of the virus and improve worker protections.
For more information, contact an 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. The most recent articles include:
- Webinar: What Employers Need to Know About Coronavirus Vaccines Part 2, February 3
- Top 3 Risk Management & Benefits Solutions for Law Firms in 2021, February 3
- Webinar: Register for EPIC’s 2021 Employee Benefits Compliance Webinars, February 3
- EPIC Welcomes John Prentis and Larry Bowlus to Executive Risk and Cyber Practice, February 2
- Employee Benefits Changes Under the Consolidated Appropriations Act, February 1
- EEOC Proposed Wellness Rules Addressing Permitted Incentive Limits, February 1
- HHS Proposed Modifications to the HIPAA Privacy Rule, February 1
- San Francisco HCSO Top-Off Payments Due February 28, February 1
- Law Firm Benefits, Risk & Insurance: 21 Predictions for 2021, February 1
- The Ransomware Threat Landscape for Law Firms, January 29
- Webinar: How Will the Coronavirus Vaccine Change Your Firm in 2021?, January 29
- Benefits Communications: Not Just for Open Enrollment, January 28
- OSHA Recordkeeping Requirements (National Construction Practice Safety Alert), January 25
- Employers Have Spoken About COVID-19 Vaccination, January 25
- What Employers Need to Know About COVID-19 Vaccines, January 25
- Social Inflation: Defining and Mitigating an Emerging Risk, January 25
- OSHA 300 Recordkeeping Webinar Recordings Available, January 21
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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