EPIC Risk Advisory Bulletin
Volume 1, Issue 17
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
- Supply Chain and Business Risks
- Checking Idle Properties for Legionnaire’s Disease
- FMCSA Update
- Insurance Products and Coverage Information
- New Pandemic Market Report
- Medical Liability Risk
- News of Note
- Human Resources and Employee Benefits
- Managing Injury Risks for Remote Workers
- OSHA’s New Guidance for Employers
- Do Employers Have to Pay for Coronavirus Testing?
- How Coronavirus is Impacting Workers’ Compensation
- 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.
Supply Chain & Business Risks
Check Idle Buildings for Legionnaire’s Disease Before Reopening
America’s reopening efforts are bringing some employees back to office buildings that have sat idle for several months. Before allowing employees to enter a building; however, it is important to flush and sanitize pipes and water-based air conditioning systems to prevent the spread of the potentially lethal Legionnaire’s disease.
Named for a deadly outbreak of the Legionella bacteria in 1976 after an American Legion convention in a Philadelphia hotel, the disease could emerge in buildings in which water stagnated during the quarantine period.
Commercial Property and Environmental insurers have responded to the potential threat by issuing an alert to commercial property owners and building managers to avoid outbreaks of the disease. It is possible for the bacteria to be lurking not only in office buildings, but idle movie theaters, gyms, schools and office buildings as well. Insureds with upcoming renewals may be asked to document how they have maintained their plumbing and cooling systems historically and over the past few months.
The alert is a reminder of the various risks property owners and facilities managers face in mitigating risk and preparing properties for both vacancy and reopening during the coronavirus pandemic and hurricane season. Other risks addressed in Issue 9 of EPIC’s newsletter covering coronavirus-related issues include vandalism, theft, water damage, freezing, fires and more.
The Centers for Disease Control (CDC) offers helpful and useful resources for conducting Legionella Environmental Assessments and gathering samples, including assessment checklists and online training.
- Access the CDC’s Legionella Environmental Assessment form
- Access the main Legionnaire’s disease resource page
Contact your EPIC broker for more information.
FMCSA Waiver Reissued
The Federal Motor Carrier Safety Administration (FMCSA) reissued a waiver from certain regulations applicable to interstate and intrastate commercial motor vehicle (CMV) drivers holding a commercial driver’s license (CDL) and commercial learner’s permit (CLP).
The extension will allow drivers to extend the maximum period of CDL and CLP validity and waives several requirements related to medical certifications. The waiver, which is effective July 1 and expires on September 30, can be read in full at the FMCSA’s website
Highlights of the waiver include the following.
For CDL/CLP drivers, the waiver:
- Extends until September 30, 2020, the maximum period of CDL validity for CDLs due for renewal on or after March 1, 2020.
- Extends until September 30, 2020, the maximum period of CLP validity for CLPs that are due for renewal on or after March 1, 2020, without requiring CLP holders to retake general and endorsement knowledge tests.
- Waives the requirement that CLP holders wait 14 days to take the CDL skills test.
- Waives the requirement that CDL holders, CLP holders, and non-CDL drivers have a medical examination and certification, provided that they have proof of a valid medical certification and any required medical variance that were issued for a period of 90 days or longer and that expired on or after March 1, 2020.
- Waives the requirement that, in order to maintain the medical certification status of “certified,” CDL or CLP holders provide SDLAs with an original or copy of a subsequently issued medical examiner’s certificate and any required medical variance, provided that they have proof of a valid medical certification or medical variance that expired on or after March 1, 2020.
For State Driver Licensing Agencies (SDLAs), FMCSA will waive:
- The requirement that SDLAs change the CDL or CLP holder’s medical certification status to “not certified” upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification or medical variance that expired on or after March 1, 2020.
- The requirements that SDLAs initiate a CDL or CLP downgrade upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification or medical variance that expired on or after March 1, 2020.
For more information about the waiver or how it may impact your operations, contact your EPIC broker.
Insurance Products & Coverage
Report Alert: Gauging the Impact of Coronavirus on Insurance Markets
EPIC has released a new report that covers the many ways coronavirus has impacted Insureds. The report, which features insights from EPIC practice leaders, shows that many markets have moved toward higher rates, decreased capacity and more conservative risk selection. While certainty regarding how markets will ultimately respond is unknown, it is clear that things will be different for quite some time.
Read the full report on EPIC’s website
Medical Liability Risk
Healthcare systems and hospitals occupy the battlefront in America’s fight to contain the coronavirus pandemic. While much goodwill is currently on display for the country’s healthcare workers and hospitals, it remains to be seen when that goodwill will fade and medical malpractice claims will begin to climb.
Changing exposures, tort reform, rebuttal presumption, telemedicine and claims activity are but a few of the issues currently impacting the medical malpractice market. Susan Tewhill, Edgewood Healthcare Advisors’ Practice Leader, and Larry Reback, Head of EPIC’s Policy Response Unit, spoke with AM BestTV host Meg Green along with Stanford Medicine’s Elaine Ziemba and Zurich North America’s Joe Sullivan about how hospitals’ risks and coverage needs are evolving in the current environment.
Watch this special episode, Hospitals: The New Frontier for Medical Liability Risk
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.
- Bond Bind: Indie film ecosystem at risk with no COVID insurance, and solutions are far off, Deadline, June 26
- COVID-19 weather report for May 2020, National Underwriter, June 26
- Aviation, hospitality among sectors hit by COVID rate hikes, Business Insurance, June 24
- Key cause of cyber loss identified in new report, Insurance Business, June 22
- Navigating through proof of loss requirements during the COVID-19 pandemic, National Underwriter, June 22
- How Tokio Marine fast tracks business insurance claims payouts, Pymts, June 22
- Working from home: The pros, cons and potential pitfalls of it becoming permanent, Denver Post, June 21
- Medical societies need help to cover losses caused by COVID-19, AMA, June 19
- There’s a fight brewing over whether companies are responsible when workers get coronavirus, CNBC, June 19
HR & Employee Benefits Insights
Managing Injury Risks for Remote Workers
Working remotely or in a home office setting carries the risk of workplace injuries, and perhaps heightens it, for employees whose home offices are not entirely safe. A simple unintended fall from a chair or a trip over an exposed power cord could result in workplace injuries that may potentially become workers’ compensation claims.
It is essential that employers have an official, written remote work policy in place. In addition, documented formal training for employees and the availability of resources on how to establish a safe home office environment are necessary.
As part of a formal policy creation process, employers should assess the potential for workers’ compensation-related claims by asking themselves questions that include the following considerations.
- Have you provided remote employees with necessary equipment?
- Have you provided training or assistance with ergonomics, biomechanics and daily safety routines?
- Have you addressed deviations, personal errands breaks and travel concerns?
- Have you developed a plan for investigating workers’ compensation claims?
An additional matter requiring consideration is the legal responsibility maintained by employers for the safety of employees working from home. OSHA has established a sharp difference between home offices and home workplaces, and has made it clear that employers who require or permit employees to work from their homes have limited responsibilities for their health and safety in their home offices, which is different from their responsibilities to maintain a safe working environment.
OSHA has stated that it will not conduct inspections of employees’ home offices and it will not hold employers liable for employees’ home offices. Additionally, OSHA does not expect employers to inspect employees’ home offices. However, when an employee sustains a work-related injury at home, that injury should be recorded on the employer’s OSHA 300 log. This is made clear in OSHA regulation 29 C.F.R. § 1904.5(b)(7), which states:
How do I decide if a case is work-related when the employee is working at home?
Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.
States can vary in their application of the code when considering workers’ compensation claims and work-related injuries sustained at an employee’s home. Employers should consult with their legal professionals regarding the law and their responsibilities to employees in their state.
For more information and resources, contact your EPIC broker.
OSHA Releases Guidance on Returning to Work for Non-Essential Businesses
On June 18, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released new coronavirus-related guidance for non-essential businesses to help inform reopening efforts.
OSHA stressed upfront that the guidance is not a standard or regulation and creates no new legal obligations. Rather, it contains recommendations and descriptions of mandatory safety and health standards. The guidance, OSHA Publication 4045, complements earlier documents, OSHA Publication 3930, and the White House’s Guidelines for Opening up America Again.
Publication 4045 provides general principles for updating restrictions originally created to slow the spread of coronavirus and aligns with the three phases set out in the White House’s Guidelines for Opening up America Again. In general, those phases state the following:
- Phase 1: Businesses should consider making telework available, when possible and feasible with business operations. For employees who return to the workplace, consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, accommodations (i.e., flexibilities based on individual needs) should be considered for workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions. Businesses should also consider extending special accommodations to workers with household members at higher risk of severe illness. Non-essential business travel should be limited.
- Phase 2: Businesses should continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business. Continue to accommodate vulnerable workers as identified above in Phase 1.
- Phase 3: Businesses should resume unrestricted staffing of work sites. Employers should direct reopening efforts in tandem with state and local guidance, regulations and public health directives.
Each state’s summary of public health criteria in reopening plans may be found at the National Governors Association website
Contact your EPIC broker for more information.
Do Employers Have to Pay for Coronavirus Testing?
As states reopen and many workers return to onsite work settings, one question on employers’ minds is whether or not they must pay for coronavirus testing for their employees. Both the FFCRA and CARES Act contain provisions addressing this matter, as well as eventual vaccination costs and expanded telehealth availability.
Multiple FAQs released by the Department of Labor (DOL) and Health and Human Services (HHS) have offered guidance about how the provisions in the FFCRA and CARES Act will be interpreted and enforced. The documents explain that while employers must cover certain testing expenses under their group health plans, return-to-work coronavirus testing is not required to be covered by a group health plan.
The EPIC benefits team has prepared an in-depth alert addressing the coverages for group health and self-insured plans, types of tests required, balance billing issues and more about coronavirus testing. Read our guidance
For more information, please contact your EPIC broker.
How Coronavirus is Impacting Workers’ Compensation
Coronavirus has forever changed the workplace. Telecommuting levels will remain higher than in the past, and worksites will look different, with new safety measures and protocols in place. These realities, along with a contracting economy, are bringing new challenges and changes to the workers’ compensation market.
In the immediate term, total claims are significantly down due to reduced laborers in the workforce. Many employees are choosing to take sick leave over filing workers’ compensation claims for coronavirus infections. This may change; however, if employers alter their policies, or if filing a claim becomes a more attractive option to employees. Presumptive compensability legislation could impact the market significantly by forcing coverage of claims that employers would have otherwise had grounds to deny.
While Insurers took some time to determine how to approach pandemic data gathering on an enterprise level, they are now requesting how the pandemic is affecting Insureds’ payroll exposure, budgets, operations and services. Many want to know how claims are coded and what information is being gathered when claims are filed. Of particular interest to Insurers is whether or not employers have a pandemic plan in place and how closely they are following it.
In the long-term, claims could rise as workers return to onsite working locations that they have lost familiarity with over the past few months. Employers will need to emphasize safety training to prevent common injuries like slips and falls. The inherent challenge of insurance is that premiums and coverage are determined by past developments. The current, uncharted territory has resulted in an insurance market faced with uncertainty, which will likely translate into more conservatism on the part of Insurers and less appetite for risk.
EPIC has invested in and created analytical models intended to provide deeper insight into projected spending across the spectrum of risk, including workers’ compensation. The model considers multiple factors including geography, population demographics and more to define how the pandemic may impact the total cost of risk.
For more information and resources, contact your EPIC broker.
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.
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. Access its coronavirus workers’ compensation compensability presumptions chart, updated weekly with developments around state legislative activity in this area.
Insights From Across the Firm
EPIC’s thought leaders have written numerous articles on matters relating to coronavirus, all of which are available on EPIC’s website. Those articles include:
- Healthcare is at the Crossroads Again, June 25
- DOL Clarifies FFCRA and CARES Act COVID-19 Testing Coverage Requirements, June 23
- Demystifying PCI DSS Liability, June 23
- Traditional Insurance Carriers are Reimagining Healthcare – They Have To, June 18
- Goodbye Passwords and Hello Retinal Scans: How Believers in Biometrics are Making Their Data Protection Case, June 18
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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