EPIC Risk Advisory Bulletin

Volume 2, Issue 4

In this issue, we take a focused look at:

  1. Supply Chain and Business Risks
    • FMCSA Extends Emergency Declaration and Waivers
    • FAQs About Mask Requirements at Transportation Hubs
    • Canadian Government Introduces More Travel Restrictions
    • Travel Restrictions in UK Could Carry Jail Time
  2. Insurance Products and Coverage Information
    • Business Interruption
    • Presumptive Compensability
    • News of Note
  3. Human Resources and Employee Benefits
    • Virginia Safety Rule Could Become National Model
    • New CDC Study Shows Benefits of Double Masking
    • Spotlight on the Coronavirus Vaccine
    • 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

FMCSA Extends Emergency Declaration and Waivers

The Federal Motor Carrier Safety Administration (FMCSA) has extended its emergency declaration waiver. This extension of the expanded modified Emergency Declaration is effective February 17, 2021 through May 31, 2021 or until the revocation of the declaration of national emergency, whichever is sooner. The FMCSA expects this will be the final extension of the Emergency Declaration.

The declaration continues to provide regulatory relief only to commercial motor vehicle operations providing direct assistance related to COVID-19 and is limited to the transportation of:

  • Livestock and livestock feed
  • Medical supplies and equipment related to the testing, diagnosis and treatment of coronavirus
  • Vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of coronavirus
  • Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of coronavirus such as masks, gloves, hand sanitizer, soap and disinfectants
  • Food, paper products and other groceries for emergency restocking of distribution centers or stores

Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration.

Additionally, and to provide flexibility to Commercial Motor Vehicle (CMV) operators in light of the ongoing pandemic, the FMCSA has extended several waivers pertaining to expiring Commercial Driver’s Licenses (CDLs) and Commercial Learner’s Permits (CLPs).

Each waiver is effective March 1, 2021 and expires either on May 31, 2021 or upon the revocation of the Declaration of National Emergency concerning the coronavirus public health emergency, whichever is sooner.

  1. Waiver in Response to the Coronavirus National Emergency – For States, CDL Holders, CLP Holders and Interstate Drivers Operating Commercial Motor Vehicles

The FMCSA has reissued a waiver to extend the validity of CDLs and CLPs, and to waive the 14-day waiting period and grants other waivers from certain regulations applicable to interstate and intrastate CDL and CLP holders and to other interstate drivers operating CMVs. The FMCSA is limiting the waiver eligibility to drivers whose medical certification or variance expired on or after December 1, 2020. While the FMCSA recognizes in some States, drivers continue to experience difficulty in obtaining a medical certification or variance and providing it to the State Driver Licensing Agency (SDLA), the Agency must also ensure safety by limiting how long a driver may operate a CMV with an expired medical certificate or variance.

Therefore, the FMCSA is not waiving the medical certification requirements for drivers whose medical certification or variance expired before December 1, 2020, and drivers are urged to obtain a new medical certificate or variance as soon as practicable. SDLAs and medical examiners are encouraged to prioritize for appointments drivers in this category. Drivers whose medical certification or variance expired on or after December 1, 2020 are covered under this waiver until May 31, 2021.

Access the Waiver

  1. Three-Month Waiver in Response to the Coronavirus Emergency – For States and CLP Holders Operating Commercial Motor Vehicles

The FMCSA has extended its waiver of the requirement that a CLP holder be accompanied by a CDL holder, with the proper CDL class and endorsements, seated in the front seat of the vehicle while the CLP holder operates a CMV on public roads or highways. Under the terms, conditions, and restrictions of this waiver, a CLP holder may operate a CMV on public roads or highways without an accompanying CDL holder present in the front seat of the vehicle, provided that the CDL holder is elsewhere in the cab. In addition, the CLP holder must be in possession of evidence from the testing jurisdiction, including an authorized third-party tester, that the CLP holder has passed the CDL driving skills test, and, the CLP holder has a valid non-CDL driver’s license, CLP, and medical certificate, unless FMCSA’s waiver regarding expiring CDLs, CLPs and medical examiners’ certificates (noted above) applies.

This also waives the restriction under §383.79(a) that limits a state to administering a driving skills test to out of state CDL applicants who took driver training in that state. Under the terms, conditions, and restrictions of this waiver, a state may elect to administer a driving skills test to any out of state CDL applicant, regardless of where the applicant received training.

Access the Waiver  

  1. Waiver for States Concerning Third Party CDL Skills Test Examiners in Response to the Coronavirus Emergency

The FMCSA has again waived the CDL knowledge test examiner training requirements in §384.228(b)-(c) for certain third-party CDL skills test examiners. This waiver allows state authorized third party-skills test examiners who have maintained a valid CDL test examiner certification and have previously completed a CDL skills test examiner training course that satisfies the requirements of §384.228(d) to administer the CDL knowledge test without completing a CDL knowledge test training course.

Access the Waiver 

For more information, contact EPIC Transportation & Logistics Risk Control.

FAQs About New Mask Requirements at Transportation Hubs

The Centers for Disease Control and Prevention (CDC) issued an Order on January 29, 2021, requiring the wearing of masks by travelers to prevent spread of the virus that causes coronavirus.  The CDC directive specifically exempts “commercial motor vehicles or trucks as defined in §390.5, if the driver is the sole occupant of the vehicle or truck.”

Conveyance operators must also require that all persons wear masks when boarding, disembarking, and for the duration of travel, with certain exemptions as described in the Questions below. The Order defines “conveyance” as including “aircraft, train, road vehicle (including rideshares), vessel…or other means of transport, including military transport.” (42 CFR §§ 70.1, 71.1).  Operators of transportation hubs must require all persons wear a mask when entering or on the premises of a transportation hub. A “transportation hub” means any airport, bus terminal, marina, seaport, or other port, subway station, terminal, train station, U.S. port of entry, or any other location that provides transportation.” More information about this order can be found on the CDC’s website, including its FAQs for this mask requirement.

The Transportation Security Administration (TSA) has issued an emergency amendment and three security directives in support of the CDC Order. They can be found here. SD 1582/84-21-01 pertains directly to owners and operators of ground transport. The other three pertain to the aviation industry. For more information about the TSA’s coronavirus prevention efforts visit their COVID-19 hub, or their FAQs.

Interestingly, the directives do not specifically exempt situations where a driver is with another individual (i.e., team drivers). The American Trucking Association raised this issue during calls with the FMCSA, TSA and CDC, and emphasized that the National Institute for Occupational Safety and Health (NIOSH) removed the in-cab mask requirement guidance for team truck drivers when they are part of the same household. Therefore, ATA is recommending that the current requirements not apply to team drivers.

For more information, contact EPIC Transportation & Logistics Risk Control.

Canadian Government Introduces Further Restrictions on International Travel

On January 29, Prime Minister Justin Trudeau announced incoming measures at the land border that would require all non-essential travelers entering Canada to provide proof of a negative coronavirus test before arrival. Now, people who show up at a Canadian land border on non-essential travel, such as returning snowbirds, will be expected to show a negative PCR test from the previous 72 hours.

In late January, the Government of Canada announced its intention to test at the land border but emphasized that commercial truck drivers and other essential workers would continue to be exempt from this requirement, which was confirmed in a Transport Canada press release.

The Government of Canada will introduce a 72-hour pre-arrival testing requirement (molecular test) for travelers seeking entry in land mode, with limited exceptions such as commercial truckers. In addition, they will continue to collaborate with partners in the United States to strengthen border measures and keep both countries safe.

For more information, contact EPIC Transportation & Logistics Risk Control.

New Travel Restrictions Could Carry Jail Time in the UK

On February 10, authorities in the UK announced new travel restrictions, including prison sentences of up to 10 years for anyone traveling to Britain who lies about previous travel history. Additional penalties that may be enforced upon British residents arriving in England from more than 30 countries where coronavirus variants are believed to be widespread, will have to pay up to 1,750 pounds ($2,410) for a ten-day quarantine in government-managed hotel rooms.

The new regulations could make international travel to and from the UK nearly impossible until all British residents have been vaccinated for coronavirus. The restrictive measures will certainly create a negative impact on the tourism industry, which is already hurting from the pandemic.

The UK Transportation Secretary indicated that restrictions could remain in place while other countries lag in making significant progress toward widespread vaccination. As of February 10, Britain had administered vaccinations to nearly 18 percent of its population, which is one of the highest rates of vaccination in the world. If it continues vaccinating residents at that pace, its entire population would be vaccinated by the end of June, just in time for summer vacation.


Insurance Products & Coverage

Business Interruption Update

Legal activity regarding Business Interruption coverage transpiring over the last few weeks could be best described as a mixed bag. Within the state of Ohio alone, one federal court delivered a victory for policyholders while another court referred a coverage question to the state supreme court.

An Ohio federal judge refused to dismiss a case brought by a leasing company that lost rental income, stating that the insurer’s policy language was ambiguous. Significantly, the judge ruled that the policy provided for the loss of business income caused by, “direct physical loss of damage to property at premises.” The court further ruled that there was a distinction between physical loss and physical damage, stating that direct physical loss does not require structural damage to a property to trigger coverage.

Further, the court rejected the insurer’s argument that microorganism and loss of use exclusions applied. The ruling was yet another significant example of the importance of policy wording in determining the outcome of Business Interruption cases. In another case referred to the Ohio Supreme Court, the policyholder seeking coverage under an all-risk policy will have to wait for the state high court to provide clarity on the many cases involving coronavirus claims.

All of this activity comes as approaching contractual limitations periods may impact policyholders’ ability to seek Business Interruption coverage for coronavirus related losses. The impending limitation period comes at a time when decisions appear to be swinging in favor of Insureds.

Recent cases in North Carolina, Washington and Missouri were decided in favor of Insureds. More cases are sure to come, with a restaurant group in Boston, a caterer in Pennsylvania and a hospital system in New York all bringing suit.

For more information on this evolving situation, contact an EPIC broker.

Presumptive Compensability Legislation

States continue to introduce coronavirus presumptive compensability legislation. A bill introduced in New Mexico would create coronavirus presumption for essential workers. If passed, it would become easier for workers who contract coronavirus to be compensated. However, essential workers would have to prove that their employers had not strictly complied with extant public health orders related to the virus. Covered employees include public safety workers, school employees and others already declared essential under governor or state secretary of health orders.

In New Jersey, the state supreme court found that injuries sustained by volunteers were compensable. The case was brought by cook working on an hourly basis for a nonprofit organization who volunteered at a company event and was injured while volunteering. While the case is not immediately connected to coronavirus, the absence of workers from workplaces for many months is likely to result in more injuries, including to volunteers and could result in increased workers’ compensation cases in that state.

On the opposing side, lawmakers in both Alabama and Indiana advanced liability shield legislation designed to provide protections to businesses from coronavirus-related lawsuits. In Indiana, the legislation was fast-tracked and offered broad protection to businesses and others from lawsuits brought by individuals alleging the defendants were to blame for their coronavirus infections.

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 is 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.


HR & Employee Benefits Insights

Virginia Safety Rule Could Become National Model

On January 27, Virginia became the first state to enact a permanent coronavirus worker safety rule, setting a precedent that other states could follow. Several provisions of the rule make it preferable over California’s temporary rule, including its flexible framework and the fact that it ties employer compliance requirements to job exposure risk. California’s temporary rule imposes mandates on industries without respect to exposure risk and addresses sick leave and pay – two areas, with which the Virginia rule does not deal.

Virginia’s rule comes less than a week after President Biden signed an executive order instructing federal OSHA to evaluate the necessity of a nationwide coronavirus rule. Now, industry lawyers think Virginia’s rule could provide the blueprint for a national standard.

Generally speaking, the rule requires employers to gauge coronavirus risks their workers face and follow CDC and State Health regulator recommendations to mitigate those risks as though those recommendations were mandated by law. Another positive aspect of the rule for employers is that it categorizes workplaces by high, medium and low risk levels and imposes different requirements based on those risk levels, rather than treating all workplaces as though they experienced the same level of risk.

High risk workplaces include healthcare settings where coronavirus patients are treated and prisons; medium risk environments include meat processing plants, transportation facilities, retail establishments and schools. Worksites in the low risk category include jobs where workers have minimal to no contact with other employees and the public, such as office buildings where social distancing measures are imposed.

Virginia’s rule is well-positioned to respond to changing CDC recommendations as new recommendations are automatically absorbed into the rule.

For more information, contact an EPIC team member.

CDC Study Shows Double Masking May Reduce Coronavirus Exposure

On February 10, the CDC released data from a study showing that wearing a cloth mask over a surgical mask may reduce exposure to coronavirus by more than 90 percent. At least two recent studies examined the use of mask fitters, or elastic ties, to improve the fit of cloth and surgical masks. The ties help masks adhere more closely to the wearer’s face and thereby reduce the possibility of contracting coronavirus while being worn.

The CDC conducted various experiments to assess the effectiveness of two methods – double masking; and knotting and tucking a surgical mask. In lab tests with dummies, exposure to potentially infectious aerosols decreased by about 95 percent when both dummies were clothed with tightly-fitted masks.

The experiments and their results highlight the importance of ensuring a good fit in maximizing the preventative effect of wearing a mask during the coronavirus pandemic.

For more information, contact an EPIC team member.

Spotlight on the Coronavirus Vaccine

While vaccinations are slowly being rolled out across the country, there are many questions arising from individuals and employers alike. EPIC offers the following valuable resources, through the links as well as articles below.

  1. Q&A From Coronavirus Vaccine Webinar with CVS Caremark
  2. What Employers Need to Know About Coronavirus Vaccines Part 2 (recording)
  3. What Employers Need to Know About Coronavirus Vaccines Part 1 (recording)
Vaccine: CDC Says Fully Vaccinated Individuals Can Skip Quarantine

On February 10, the CDC released new recommendations advising that people who have been fully vaccinated against the coronavirus with either two doses of the Pfizer or Moderna vaccines can skip quarantine requirements if they are exposed to someone with the virus.

The CDC reiterated that fully vaccinated individuals should continue masking and distancing precautions just as they did before receiving the vaccine. However, they may skip quarantining, providing they meet the following criteria:

  • Fully-vaccinated with both shots
  • Minimum of two weeks’ time since the date of receiving second shot

The latter criteria follows the belief that it takes two weeks to build full immunity after receiving a second dose of the vaccine. The CDC reiterated that it remains unknown how long protection lasts after receiving the full vaccination, so individuals who received their second shot three months or more prior, should quarantine after being exposed to someone with the virus.

The CDC also advised vaccinated individuals displaying symptoms of coronavirus to quarantine for the standard 14-day period. It also advised individuals to watch for symptoms to appear within two weeks of receiving the second dose.

Finally, the CDC reminded everyone, vaccinated or not, to continue to practice social distancing and masking to slow the spread of the virus.

For more information, contact an EPIC team member.

Vaccine: EPIC Answers FAQs

EPIC has prepared responses to frequently asked questions about the coronavirus vaccines for employers.

Q: What is the coronavirus vaccine and how does it work?

A: Vaccines help our bodies develop immunity to the virus that causes coronavirus without us having to get the illness. Different types of vaccines work in different ways to offer protection, but as with all types of vaccines, the body is left with a supply of “memory” cells that will remember how to fight that virus if the body is exposed in the future.

Q: Is the vaccine safe?

A: Coronavirus vaccines were tested in large clinical trials to make sure they meet safety standards. Many people participated in these trials to see how the vaccines offer protection to people of different ages, races, and ethnicities, as well as those with different medical conditions.

The Food and Drug Administration (FDA) carefully reviews all safety data from clinical trials and authorizes emergency vaccine use only when the expected benefits outweigh potential risks.

Q: Who may get the vaccine?

A: Front-line workers and individuals considered high-risk for the disease have been prioritized for vaccination. Older individuals followed by all adults will be vaccinated after high risk groups and essential workers. Yet, each state’s rollout strategy may vary, so it is wise to check with the department of public health in your state for vaccine distribution plans. After it becomes widely available, the vaccine may not be available for young children until more studies are completed.

Q: How many shots of coronavirus vaccine will be needed?

A: There are more than 50 coronavirus vaccine candidates in trials – many in Phase 3, the final stage of clinical trials. All but one of the coronavirus vaccines currently in Phase 3 clinical trials in the United States need two shots, a few weeks apart, to be effective. The other coronavirus vaccine uses one shot.

Q: How long does immunity last?

A: There is not enough data yet to know how long immunity lasts after receiving a coronavirus vaccine or to know if those who have been previously infected with coronavirus have a natural immunity. Early evidence suggests that natural immunity from coronavirus may not last very long, but more studies are needed to better understand this.

Q: Can I stop wearing a mask after I get the vaccine?

A: The vaccine is not a perfect fix. Other precautions like wearing a mask, social distancing, handwashing and other hygiene measures will need to be practiced until public health officials say otherwise. Together, the coronavirus vaccination and following CDC’s recommendations to protect oneself and others will offer the best protection from the virus.

Additional information can be accessed online at: cdc.gov/coronavirus/2019-ncov/vaccines/faq

Vaccine: Guidance for Employers

The CDC has offered guidelines on how the vaccine should be distributed, but it is ultimately up to state and local governments to determine the distribution process. The U.S. is targeting 70% inoculation by the end of June 2021, a moving target, assuming:

  • Additional drugs will be proven effective and get approved
  • Manufacturers meet production goals and distribution timelines
  • Vaccine skepticism is limited

Vaccine doses purchased with U.S. taxpayer dollars will be given to the American people at no cost. However, vaccine providers will be able to charge administration fees for giving or administering the shot to someone.

Plans must cover the cost of a vaccine’s administration, even if the cost of the vaccine itself is paid by a third party, including the federal government. The interim final rule issued by the Centers for Medicare and Medicaid Services (CMS), requires insurers to cover a coronavirus vaccine without any cost-sharing from in-network and out-of-network providers during the public health emergency per the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

This coverage is required to be covered by health plans within 15 business days after the date the United States Preventive Services Task Force or the Advisory Committee on Immunization Practices (ACIP) of the CDC makes vaccine recommendations.

This scope is broader than preventive services under the Affordable Care Act (ACA), where rules for preventive services allow plans at least a year after the United States Preventive Services Taskforce (USPSTF) recommendation to begin coverage, and only apply in-network.

At this time, it is unknown whether or not an amendment for plans will need to be drafted with the release of the vaccinations, although it is likely the vaccine will be covered by the plan without an amendment similar to how other coronavirus services were covered earlier this year.

Generally speaking, employers may require employees to receive a vaccination as a condition of employment but should first consider possible exceptions due to specific employee circumstances. Employers are encouraged to seek guidance from legal counsel before implementing a mandatory vaccine policy.

The Americans with Disabilities Act (ADA) considers a vaccine a “medical exam” and allows medical exams only when job-related and consistent with medical necessity.

Any employee required to be vaccinated may be able to claim that a reasonable accommodation must be provided under the ADA.

Title VII protects religious affiliations and employees who claim they cannot receive a vaccine due to a religious belief. Employers need to reasonably accommodate sincerely held religious beliefs, but may require supporting documentation of beliefs if there is an objective reason for questioning an employee’s beliefs.

Much remains unknown on the vaccines, financial impact and the future state of affairs. Employers should continue to review available resources and look for additional insights from the EPIC team.

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:


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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