EPIC Risk Advisory Bulletin

Volume 1, Issue 10

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:

  1. General Information on Coronavirus
  2. Insurance Products and Coverage Information
    • Potential Role of Environmental Insurance
    • FFCRA Lawsuits Begin to Emerge
    • Legislation and Litigation Roundup
  3. Human Resources and Employee Benefits
    • Returning to Work: Resources for Employers
    • Golf Courses Open Across America
    • Working at Home With Pets: CDC Guidelines
    • Employee Benefits Insights
Return to Work Survey

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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

As time progresses, an understanding of the virus and efforts toward accurate testing and an eventual vaccine continue. With states and localities making decisions to open at various times and in differing ways, it is more important than ever to be informed of what particular states and counties are recommending.

Visit this page from USA.gov to search for a specific state and link to its department of health: www.usa.gov/state-health

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 has also compiled resources to aid in understanding the impact of the pandemic on employers, workforces and the management of risk.


Insurance Products & Coverage

Potential Role of Environmental Insurance in the Pandemic

It is important that an organization’s response plan to coronavirus include an analysis of its Environmental policy. While commercial property policies have been in the limelight as organizations assess coverage during the pandemic, there may be other options to consider. In certain cases, an organization’s environmental policy may provide coverage for disinfection costs, business income loss, as well as third party bodily injury/property damage claims.

In order to access environmental coverage, generally, a pollutant, pollution condition or similar condition, must exist, as defined by the policy. Affirmative language may exist for viruses, disinfection costs, or the coronavirus loss exposures may otherwise be determined to fit within the policy’s broad definitions, terms and conditions.

There are also potential policy exclusions to consider. Some policies exclude communicable disease or microbial substances, though policies widely vary in this regard, and many policies are completely silent on viral risks.

Insureds should work closely with their brokers to determine if it makes sense to file a claim based on coronavirus-related loss. Filing is a time sensitive issue, as delayed reporting can limit or forfeit the right to file. It is important to record the covered location/operation, date of loss, nature of loss, and other items that will help the insurer understand the loss dynamics.

While some environmental policies prior to 1/1/20 contained communicable disease restrictions, pollution insurers are reconsidering their risk appetites. Neither SARS-Cov-2 or COVID-19 have been named as either a covered or excluded loss at present. Going forward, there is uncertainty as to how environmental policies will respond to loss from viruses. No policies have been tested in the courts at present from this perspective.

The complexity of this issue is best deciphered by your EPIC team.

FFCRA Lawsuits Begin to Emerge

Now that the country has had more than a month to navigate the business landscape post the passage of the FFCRA (Families First Coronavirus Response Act), lawsuits from employees alleging employers have violated the provisions of that Act are beginning to emerge.

In a recent example of a developing case, Jones v. Eastern Airlines, an employee alleges that her supervisor became hostile when she requested two hours of paid time off per day to care for her son, an allowance that is provided through the FFCRA. Instead of receiving the time off, the employee was fired.

The FFCRA mandates that private employers with less than 500 employees as well as public sector employers, provide time off to workers who are ill, quarantined due to coronavirus, caring for ill family members, or caring for children who cannot attend school or go to day care due to the coronavirus shutdown.

While Jones’ case may be one of the early suits brought against companies believed to be in violation of the FFCRA, it is unlikely to be the last and underscores the need for employers with between 50 and 500 employees to be fully aware of and in compliance with the stipulations of the FFCRA.

Legislation and Litigation Roundup

The passage of another week has brought forth more legislation from city, county and state governmental bodies, as well as litigation. Here is a rundown of recent news stories of interest.

News of Note

HR & Employee Benefits Insights

Returning to Work: Resources and Guidelines for Businesses

As the weeks slip away due to the continuing coronavirus pandemic, businesses are putting together plans on how to safely return to work. One thing those efforts are making clear, and which EPIC’s Craig Hasday addressed recently, is that returning to work will be much harder than leaving.

Importantly, companies will need to update existing pandemic business continuity plans for coronavirus, or create them if not already in place. Some states may make written coronavirus preparedness plans a pre-requisite for opening workplaces.

Employers must also consider the legal implications of a return to work plan. Pursuant to the OSHA (Occupational Safety and Health Act), employers have a general duty to maintain a safe working environment. A failure to follow OSHA rules for PPE (personal protective equipment) could serve as a basis for civil litigation in some jurisdictions and could potentially void the exclusive remedy of workers compensation protection for an employer where gross negligence or willful conduct is established.

The White House is developing a national return to work plan that provides guidance to state and local governments on how to ease mitigation efforts and move from shelter-at-home orders in phases. The CDC and FEMA have worked on the public health response portion of the plan. Instructions for a phased reopening of institutions such as schools, child-care facilities, summer camps, parks, faith-based organizations and restaurants are included. While numerous checklists exist, this Return to Work Checklist from ThinkHR provides a helpful place to start in categorizing needs for a return to work strategy.

The decision to shutter businesses and move to remote workforces was largely driven by local, state and national directives to shelter at home. As workers across America adhere to strict social distancing guidelines and limit their movement to essential activities, many employers are trying to discern how to enable and enforce those same social distancing guidelines and safety measures in office and professional settings.

The EEOC recently expanded its guidance, providing direction on how employers should and can interact with employees without violating the confidentiality required by the Americans with Disabilities Act (ADA). The CDC has released a helpful flow chart, for businesses in a non-healthcare setting, to guide the decision making process on when and how to return to work. The CDC guidelines are also intended to help employers understand the nature of the virus better so as to prevent associated discrimination in the workplace, reduce the transmission of the virus, maintain a healthy working environment and identify employees who can work safely.

Some of the strategies suggested by the CDC include the following.

  • Actively encourage sick employees to stay home and not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments. Employees who are well but who have a sick family member at home with coronavirus should notify their supervisor and follow CDC recommended precautions.
  • Identify where and how employees could be exposed to coronavirus at work. OSHA offers guidance for employers, including steps to take for jobs categorized by exposure risk. OSHA recommends creating an infectious disease preparedness and response plan that considers and addresses the level(s) or risks associated with various worksites and job tasks workers perform at those sites.
  • Prepare to implement basic infection prevention measures including but not limited to frequent and thorough hand washing, respiratory etiquette, adequate tissues and trash receptacles for workers, customers and the public.
  • Establish policies and procedures around flexible worksites, hours (staggered shifts) and other measures to increase the physical distance among employees and between employees and others.
  • Create screening measures to identify sick employees as soon as possible, which can include temperature checks and symptom inquiries. Employers should limit questions to coronavirus symptoms.
  • Minimize face-to-face contact between higher risk employees.
  • Separate sick employees. Employers should inform fellow employees of their possible exposure to coronavirus without violating the confidentiality required by the ADA.
  • Identify a workplace coordinator for coronavirus issues.
  • Implement flexible sick leave and supportive policies and practices.
  • Review human resources policies to make sure they are consistent with public health recommendations and existing state and federal workplace laws. Connect employees with available EAP (employee assistance program) resources, if available, and community resources as needed.
  • Assess essential functions and the reliance others and the community have on your services or products. Be prepared to change business practices if necessary to maintain critical operations.
  • Identify alternate supply chains for critical goods and services.
  • Determine how to operate if and when absenteeism spikes from increases in sick employees, those who have to stay home to care for sick loved ones, and those who must stay home to watch their children if dismissed from childcare programs and K-12 schools.
  • Maintain a healthy work environment through improved engineering controls for building ventilation systems that increase ventilation rates and increase the percentage of outdoor air circulating through the system; by routinely cleaning and disinfecting all frequently touched surfaces; by discouraging workers from sharing phones, desks, tools and equipment when possible; and by providing disposable wipes to disinfect commonly touched surfaces.
  • Follow CDC guidelines for cleaning areas where an infected employee has been.
  • Update existing travel policies to reflect CDC Traveler’s Health Notices and develop policies around how employees should travel safely.
  • Take care when attending meetings and gatherings. Consider whether travel is necessary and use teleconferencing whenever possible. When in-person meetings must be held, conduct them in open, well-ventilated spaces while maintaining social distancing.

For smaller business, the Small Business Administration (SBA) has posted guidelines for businesses and employers on its website. The site offers guidance regarding issues specific to small businesses, such as access to capital; workforce capacity; inventory and supply chain shortfalls; facility remediation and clean-up; insurance coverage; changing market demand; marketing; and creating a plan.

The existence of inconsistent and conflicting local, state and national governmental orders will also likely serve as a basis for civil litigation and create serious risk management challenges for employers operating in multiple locations. Employees who feel they are forced to return to work too early could cite conflicting guidance as grounds for liability if they contract coronavirus after returning to work. The best way for employers to mitigate risk is to adhere closely to CDC and OSHA guidelines on returning to work safely and following the directives most applicable to the physical location(s) where employees work.

This continues to be a difficult time for all. Reestablishing a workplace where employees feel comfortable performing their jobs safely is a multi-dimensional challenge; the resources above aim to provide a helpful start.

Contact your EPIC broker for further guidance on these matters.

Golf Courses Open Across America, Providing Relief for Many

For some, a round of golf provides much-needed stress relief. When many courses closed in March, many people lost access to an activity they enjoy. As people realize a way to resume play with proper social distancing measures in place, more courses are opening. In fact, the National Golf Foundation found that 49% of U.S. golf courses are currently open to play.

That’s good news for golfers and courses across the country looking for a way to begin the path back to normalcy.

Working at Home With Pets: CDC Issues New Guidelines

Scientists are still trying to understand how the coronavirus affects pets and possible transmission between pets and people. Since two cats in New York tested positive for coronavirus, the CDC has issued guidelines on how to interact with pets at home. Those guidelines include the following.

  • Keep pets from interacting with people and animals outside the home.
  • Keep cats indoors when possible.
  • Walk dogs on a leash and maintain a six foot distance from others.
  • Avoid dog parks and public places where pets and people gather.

The CDC also warned pet owners who are sick with coronavirus to limit interaction with their pets, using masks and gloves when handling them.

Read the full guidance on the CDC’s website: www.cdc.gov/media/releases

Employee Benefits Insights

The management of human resources has shifted 360 degrees in this current pandemic-driven environment. As we move towards assessing a new normal, we would like to hear thoughts on how organizations are handling Open Enrollment, Onboarding & Offboarding, Wellness and more.

Share your insights: epicbrokers.com/insights/preparing-for-the-new-normal/

EPIC’s employee benefits leaders are providing timely insights as well. Numerous articles on matters related to coronavirus and employee benefits are archived on EPIC’s website. A recent article considers the credibility of coronavirus cost models. With numbers changing so rapidly and the public’s understanding of the virus growing over time, projections will change. The unprecedented nature of the virus makes it difficult to accurately project infection, hospitalization and death rates as well as associated costs to individuals and organizations.

epicbrokers.com/insights/how-credible-are-coronavirus-cost-models/

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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