From automated estimating to mobile technologies, on-demand tools and networked solutions, technology advancements introduced during Crawford’s 80-year history are improving claimants’ experience. In this Business Insurance Risk Perspective, Crawford leaders highlight some of the biggest changes in claims handling over the past eight decades.
Kristen Peed, corporate director, risk management and insurance at CBIZ Inc. discusses D&O renewal strategies, increased disclosure requirements expected from the Biden administration and how virtual meetings can actually lead to deeper business relationships.
Canadian insurance firm Desjardins Financial Holding Inc. has launched Omni — a new mobile application that assists plan members in handling their group benefits and retirement savings plans, Insurance Business reported. Desjardins’ Omni app enables group benefits plan members to access telemedicine service or the wellness platform, manage healthcare professionals list, review claims history, and much more.
By Angela Childers
While many employers are eager to open their doors after months in lockdown to quell the spread of COVID-19, myriad questions remain regarding how to navigate the inevitably changed workplace and protect the safety and health of workers and customers, experts say.
Enabling workplaces to come back safely is a national concern, said Lorraine Martin, president and CEO of the Itasca, Illinois-based National Safety Council. “Businesses need to do the best they can using the data that’s available right now. It’s really important for us to look at (each industry) uniquely.”
Essential businesses, such as pharmacies and grocery stores, remained open while trying to implement safety measures during the nearly nationwide pandemic shutdown. Many states began lifting restrictions on non-essential businesses last month and further loosening of restrictions is expected.
For many industries, including construction, the workplace has “absolutely changed 100% across the board,” said Pittsburgh-based Carl Heinlein, senior safety consultant for the American Contractors Insurance Group. “Now, before you come onto a project, you’re going through a health assessment, and in many cases that will include a temperature reading, and you’re probably going to go through some sort of re-education or toolbox talk discussion about social distancing.”
Contractors have a lot of questions about how they can restart projects while preventing workers from being exposed to COVID-19. They’re grappling with such issues as how to get workers through the gates and to work safely, a process that used to take 15 minutes and now can take several hours, Mr. Heinlein said.
The industry is also putting much more emphasis on safety and hazard awareness training, emergency preparedness, and hygiene and sanitation.
“We’re already hearing that increased hygiene, sanitation and social distancing are all being implemented on sites,” said Kaileigh Bowe, vice president of Naperville, Illinois-based Highland Insurance Solutions, a subsidiary of WNC Insurance Services Inc.
Many are using or planning to implement technology to monitor distancing and for contact tracing, said Cheri Hanes, Dallas-based construction risk engineer for Axa XL, a unit of Axa SA.
For instance, Proxxi Co. in Vancouver, British Columbia, modified its wristwatch-like technology created to prevent electrocution to alert workers when another person is within six feet. Norwalk, Connecticut-based Triax Technologies Inc. is using devices mounted on hardhats as contact tracers, so if a worker tests positive for coronavirus, other workers who had been in close proximity to that individual can be quickly identified. Smartvid.io Inc., based in Cambridge, Massachusetts, has created a module for onsite cameras to identify when workers are violating social distancing and other safety rules.
Landscape different for retail, restaurants
The workplace for retailers and restaurants will also look much different.
“Retail has been a little bit of a challenge for us,” said Larry Sloan, CEO of the American Industrial Hygiene Association in Falls Church, Virginia. Physical distancing in stores, particularly smaller ones, will be difficult, and there is also the risk of disease transmission on merchandise. Currently, the AIHA is recommending that retailers temporarily eliminate changing rooms, and if they allow for returned items, to place them in quarantine, he said.
“The concern with restaurants is that you have potentially greater contact between the wait staff and the customer,” he said. To mitigate that exposure, he said, restaurants will need to consider adopting policies such as reservation-only dining, limiting groups to six people, asking customers to wait outside or in their vehicles until their tables are ready, using partitions to create additional barriers between workers and diners and between diners themselves, and displaying signage vetted by legal counsel that outlines the steps the establishment is taking to protect the health of its employees and the public, Mr. Sloan said.
The meatpacking and poultry processing industry — which was ordered to remain open in an April 28 executive order by President Donald Trump — has been hard hit by COVID-19 and is grappling with ways to protect workers from the virus. Thousands of workers at more than 100 plants in the United States have tested positive for the virus, according to the U.S. Centers for Disease Control and Prevention.
Although the CDC and the U.S. Occupational Safety and Health Administration issued temporary guidance for the industry, which includes temperature checks, staggered shifts, social distancing on lines and providing personal protective equipment, the guidance was voluntary as of May. It is unknown whether the government will police adherence to the guidance and what limitations of liability may be applied, said Melanie Neumann, Chicago-based executive vice president and general counsel of Matrix Sciences International Inc., a food production advisory firm.
But plants that fail to follow the advice could be cited for violation of the OSHA general duty clause, which may be invoked when a serious hazard is recognized but no applicable regulation exists, said Eric Conn, founding partner of Washington law firm Conn Maciel Carey LLP.
With all of the uncertainty, employers in food-processing plants as well as other industries would be wise to appoint someone as a “COVID czar” responsible for staying on top of new pandemic guidance, conducting regular risk assessments and implementing controls to prevent the spread of the virus, Ms. Neumann said.
Provide education for workers
Regardless of the industry, employees need to be educated about COVID-19 and how to use personal protective equipment, such as face masks, said Diana Stegall, Tucson, Arizona-based president of the American Society of Safety Professionals.
Employers should help workers understand why there is a need to wear personal protective equipment, how to obtain the equipment, how to remove it properly at the end of a shift, and how to clean it on a regular basis to avoid bacteria buildup, she said.
“One of the biggest mistakes an organization can make is to assume that employees are educated about COVID-19 and know what to do in the event of exposure or diagnosis,” said Eric Glass, Franklin, Tennessee-based senior risk and safety advisor at safety science company UL LLC. “Educating your employees should be an ongoing, never-ending effort, even after this pandemic is over.”
If an employee does receive a COVID-19 positive diagnosis, the company should have a “situational matrix” that outlines the internal actions that should be taken, which may include notifying other employees that may have been exposed to someone who tested positive, and cleaning and disinfecting work areas, Mr. Glass said.
“OSHA has relaxed its guidance on recordkeeping of COVID-19, especially in areas where there is wide community spread,” Ms. Stegall said. “But that doesn’t mean in the insurance world that it’s not covered.”
OSHA still requires employers to take reasonable efforts, based on the evidence available, to ascertain whether coronavirus cases reported by employees are work-related, under revised guidance that took effect May 26. Confirmed cases of COVID-19 requiring medical attention beyond hospitalization or days away from work and are determined to be work-related must be recorded on the employer’s OSHA 300 log.
Employers should also talk with their third-party administrator or investigators to find out what guidance they have for policyholders and how to handle claims of COVID-19 infections by employees, said Jeff Adelson, co-managing shareholder of Newport Beach, California, law firm Adelson McLean APC.
“If someone comes to you and says, ‘I have the virus,’ seek guidance from the workers comp carrier — don’t hide it,” Mr. Adelson said. “Putting your head in the sand is not going to help.”
Employers that fail to put into place policies to protect workers could be opening themselves up to serious and willful misconduct claims — regardless of whether the worker files a comp claim, he said.
“Every employer needs to ask themselves, ‘Is my business complying with the requirements of the reopening order?’” Mr. Adelson said. Although an employer may still see workers comp claims for COVID-19, “as long as you follow the law … the likeliness of getting a serious and willful claim is remote.”
Workplaces also should examine more subtle issues, such as how many people can enter an elevator, how to accommodate the volume of workers needing a temperature check at the start of a shift, and whether to shift employees’ workdays to reduce exposure, Ms. Martin said.
“One of the other pieces you have to address … is employee stress and their mental and emotional needs as well,” Ms. Martin said. “People are going to have questions. … Have some resources to help folks navigate that.”
Employers also need to ask themselves why they believe bringing workers back to the workplace feels right for the safety and health of the organization.
“Make sure you’re communicating with your team why they’re going back,” Ms. Martin said. “We like clarity. We like to understand, especially if there’s fear.”
Age may be a closely guarded secret among Hollywood celebrities, but they can’t prevent movie websites from revealing it to the masses, according to a court ruling Friday.
In IMDb.com Inc. v. Becerra and the Screen Actors Guild-American Federation of Television and Radio Artists, the 9th U.S. Circuit Court of Appeals struck down a 2017 California law that required the popular internet movie database remove actors’ ages and dates of birth from its site and other sites owned by IMDb.com Inc. upon request.
The three-judge panel unanimously held that the law violated the First Amendment rights of IMDb, agreeing with the district court’s assertion that California’s legislature did not have “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
The actors’ labor union, Los Angeles-based SAG-AFTRA, argued that posting actors’ birthdates and ages has led to age discrimination in the industry. Although the circuit court agreed that reducing age discrimination “is a compelling government interest” it held that the state legislature failed to provide any evidence that the law was “actually necessary” or that it considered a less restrictive measure before “resorting to the drastic step of restricting speech.”
The U.S. Supreme Court’s somewhat surprising ruling barring workplace discrimination based on sexual orientation or gender identity finally gives the country a uniform federal law, but employers should brace themselves for additional claims in areas of remaining ambiguity, including medical coverage and the ruling’s applicability to religious institutions, experts say.
In its 6-3 ruling last week, the Supreme Court held in Bostock v. Clayton County Georgia that under Title VII of the Civil Rights Act of 1964 an employer cannot fire someone “simply for being homosexual or transgender.”
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” said the ruling by Associate Justice Neil Gorsuch. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Some observers had not expected the court to rule in the plaintiffs’ favor. Others had expected a favorable ruling but were surprised that two conservative judges, Justice Gorsuch and Chief Justice John Roberts, ruled in the plaintiffs’ favor.
“It’s a huge win for the LGBTQ community, especially for employees who were working in jurisdictions that had no state or local law that protects LGBTQ status in the workplace,” said Vincent M. Rizzo, an associate with Hinshaw & Culbertson LLP in Chicago, who focuses on labor and employment, constitutional violations and government.
“The Supreme Court is sending a message that employers need to recognize LGBTQ rights,” he said.
“The ruling is the beginning of a seismic shift” in the LGBT legal framework, said Moiré Morón, Atlanta-based assistant vice president and claims leader with QBE North America.
The ruling covered three cases:
- In the Bostock case, the 11th U.S. Circuit Court of Appeals in Atlanta upheld a lower court decision and ruled against Gerald Lynn Bostock, a gay man who contended he was fired as a child welfare services coordinator for the Clayton County, Georgia, juvenile court system because of its systemic sexual orientation discrimination.
- In R.G. & G. R. Harris Funeral Homes Inc, v. Equal Employment Opportunity Commission, the 6th U.S. Circuit in Cincinnati ruled in favor of Aimee Stephens, a transgender worker who was fired when she told her funeral home employer she was undergoing a gender transition from male to female.
- In Melissa Zarda et al. v. Altitude Express, the 2nd Circuit in New York decided in favor of Donald Zarda, a gay man who had sued his former employer alleging he was fired from his job as a skydiving instructor because of his sexual orientation.
Mr. Zarda and Ms. Stephens died before the high court reached its ruling.
Experts say that because of policies already voluntarily introduced by large employers, in particular, as well as federal and state court rulings and local ordinances, safeguards that protect most LGBTQ Americans are already in place.
“Major employers in the country, either on their own to attract talent or because of state or local laws, already are in compliance with this,” said Jay A. Zweig, a partner with Bryan Cave Leighton Paisner LLP in Phoenix, who represents employers.
Observers say that rather than breaking entirely new ground, in some respects the ruling is an expansion of previously issued Supreme Court rulings, including its 1998 decision in Oncale v. Sundowner Offshore Services Inc. et al., in which it held that sexual harassment discrimination charges can be made when the plaintiff and defendant are of the same sex.
Last week’s ruling establishes welcome uniformity in federal law, observers say. Many states and localities have anti-discrimination provisions, but “there was a question at least on the federal level that has now been resolved,” said attorney David L. Barron, a member of Cozen O’Connor P.C. in Houston.
“It’s not going to affect your everyday employee decisions,” but “adverse employment tactics that affect work conditions or work pay,” such as hiring decisions, terminations, promotions and job placements, Mr. Rizzo said.
“Now that we have this ruling, perhaps individuals who identify as LGBTQ will feel more empowered to file complaints and bring suits they were hesitant to do before” for harassment, retaliation and disability discrimination as it relates to transgender individuals, according to Ms. Morón, who said she is a member of the LGBTQ community. “We can see potentially a huge impact on some of the claims that employers face or will be facing.”
More claims can be expected, observers say.
“You’re going to see more claims based on either perceived, disparate treatment of LGBTQ, or implicit bias types of claims, where a person says, ‘Well, you didn’t put me in this position, or I didn’t get this promotion, or this adverse employment even happened because of my sexual orientation,” Mr. Zweig said.
“You’re going to see a lot of litigation of that under Title VII,” and there will be fact-intensive inquiries about the shifting burdens of proof under Title VII, he said.
“There will be some impact in those geographic areas of the country that were covered by circuits that previously interpreted the statute to not cover gender identity or sexual discrimination,” said Michael W. Johnston, a partner with King & Spalding LLP in Atlanta, who focuses on employment litigation and employment-related internal investigations.
“We’ll see filings for sexual orientation and gender identity claims with the EEOC, certainly, now that there is clearly protection,” although only about 2% of employment-related claims involve such characteristics, said D. Ryan Derry, a partner in Paul Hastings LLP’s employment law department in San Francisco.
“The ruling’s pertinence to religious organizations is “going to be a huge area of debate,” Mr. Barron said.
In its 2012 ruling in Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission et al., the Supreme Court held a religious school can claim a “ministerial exception” to a discrimination charge under the Americans with Disabilities Act for a teacher who also taught secular subjects, but the exception bars only employment discrimination lawsuits.
Experts point also to the U.S. Supreme Court’s 2014 ruling in Burwell vs. Hobby Lobby Stores Inc., in which it ruled that requiring closely held corporations to pay for insurance coverage for contraception under the Affordable Care Act violated the Religious Freedom Restoration Act.
“We likely will see some defendants trying to rely more on the Religious Freedom Restoration Act,” said J. Randall Coffey, a partner with Fisher & Phillips LLP in Kansas City, Missouri, who represents management in employment and labor matters. “I think there’s a fair amount of respect for people’s sincerely held religious beliefs.”
However, David Ritter, a partner with Barnes & Thornburgh LLP in Chicago, who represents management in labor and employment issues, said he does not anticipate a flood of claims in this area. “Religious institutions have been litigating issues regarding Title VII since its inception,” he said.
Experts suggest employers check the language of their employment policies to be sure they conform with the ruling. Employers “should be looking at this decision and taking note of how broad it is, and then making sure that they update their policies and train all employees consistently with this, and then follow good practices and make sure when they do something adverse with an employee (they) still document a good business reason for their actions,” Mr. Zweig said.
Employers should also examine their bathroom policies, which could be affected by the ruling, Mr. Rizzo said.
The ruling did not specifically address employee benefit plans, but employers should look at their plans’ eligibility for same-sex spouses to see whether coverage is excluded, said Michael Garrett, a principal with Mercer Inc.’s total health management specialty practice in Seattle.
Mr. Garrett also suggested employers see if their benefit plans provide coverage for gender dysphoria and gender affirmation or treatment. There are also issues related to mental health parity, he said.
Another issue is whether medical plans provide family planning coverage for fertility, adoption and surrogacy for same-sex couples, Mr. Garrett said. Employers should check as well to see if there is disability coverage for gender affirmation surgeries.
Employee training is also important, experts say. “Think about how to put in place training to create a workplace that is inclusive, and make sure that all employees feel included within the workplace,” Mr. Derry said.
Observers say they do not expect the ruling to materially impact employment practices liability insurance rates. The ruling is consistent with the position the EEOC has been taking and is already viewed by employers, to an extent, as the “cost of doing business,” said Samuel Fenwick-Schwartz, a partner with Seyfarth Shaw LLP in Chicago, who defends complex class actions.
Higher EPLI rates are possible, but not in places such as New York State and New York City where these individuals were already protected, said Regina E. Faul, New York-based partner who chairs Philip Nizer LLP’s employment & labor practice.
U.K.’s Prudential Regulatory Authority plans to assess its policy related to insurance-linked securities and insurance special purpose vehicles for changes as the Brexit transition proceeds, Artemis reports. The extension of the transition, which is set to run until the end of this year, will create uncertainty for ILS and reinsurance players. This could hinder getting potential insurance and reinsurance sponsors onboard, as well as investor interest in the country’s ILS infrastructure.
By Angela Childers
The dependents of essential workers in New Jersey who die from COVID-19 in the course of employment may receive enhanced benefits if a bill that passed the state’s Senate becomes law.
The New Jersey Senate passed bipartisan bill S.B. 2476 in a 38-1 vote Monday. The legislation would provide the dependents of essential workers who died after March 1, 2020, due to the contraction of coronavirus on the job with enhanced weekly supplemental benefits from the state’s Second Injury Fund.
Essential employees include fire, police and other first responders; medical and other health care service providers; public-facing workers providing transportation or financial services; those involved in the production, preparation, storage, sale and distribution of essential goods; and other employees deemed essential in the state of emergency.
The supplemental benefits are intended to mirror cost-of-living-adjustment benefits in place for dependents of public safety workers killed in the line of duty. The additional benefits would be paid during the period in which the dependents receive the initially awarded weekly benefits and would be reduced accordingly for dependents receiving Federal Old-Age, Survivors’ and Disability Insurance Act benefits.
If signed into law, the legislation would take effect immediately.
The bill has moved to the state’s Assembly. A similar bill, A.B. 3998, was introduced to early May and has been in the Assembly Labor Committee.
By Louise Esola
As of 2020 most states have regulations on prescribing and managing opioids, but fewer than half have in place such protective measures as drug formularies and mandated drug rehabilitation, according to a report released Tuesday by the Workers’ Compensation Research Institute.
Researchers with the Cambridge, Massachusetts-based organization gathered data from all 50 states on recent laws, prescribing guidelines and such programs as prescription monitoring for controlled substances to measure how states have been managing the opioid crisis and the emergence of medical marijuana laws.
The report found all but six states have limits on how many opioids can be prescribed and for how long. All but one state has in place a statewide, mandated prescription drug monitoring program; Missouri made its PDMP optional, but data shows that 80% of the state’s population lives in a municipality that keeps track of prescriptions, according to the report.
While most states have in place prescribing guidelines, only 15 have drug formularies, or approved drug lists, for workers compensation, according to the report.
The report also shows a lag in drug abuse treatment options, as only 17 states definitively include “mental health services” for “drug rehabilitation” in workers comp statutes.
By Gavin Scouter
A coronavirus business interruption suit filed against Berkshire Hathaway Inc. alleges that virus exclusions that have been used by insurers since 2006 should be ruled invalid because the policy wordings organizations that devised them made misrepresentations to regulators.
In the proposed class action 1 S.A.N.T. Inc. d/b/a Town & Country and d/b/a Gatherings Banquet & Event Center v. Berkshire Hathaway Inc., a New Castle, Pennsylvania
, restaurant and tavern argues that Berkshire Hathaway wrongly denied its claim for business interruption coverage for income lost during the COVID-19 lockdown.
Like many similar suits filed by policyholders against insurers nationwide, the 1 S.A.N.T. suit, which was filed in federal court in Pittsburgh on June 11, alleges that the coronavirus pandemic caused direct physical damage to the plaintiff’s property, which it argues triggers business interruption coverage under its commercial insurance policy.
In addition, the suit argues that the virus exclusion in the policy does not apply because the groups that drew up the wordings 14 years ago — Insurance Services Office Inc. and the American Association of Insurance Services — told regulators that existing property polices did not cover “disease-causing agents” and the exclusions were intended to “clarify” coverage.
However, courts had previously ruled that property policies covered claims involving disease-causing agents, court papers say. The suit does not cite specific past rulings on the issue.
“The foregoing assertions by the insurance industry (including Defendant), made to obtain regulatory approval of the Virus Exclusion, were in fact misrepresentations and for this reason, among other public policy concerns, insurers should now be estopped from enforcing the Virus Exclusion to avoid coverage of claims related to the COVID-19 pandemic,” court papers say.
Berkshire Hathaway, ISO and AAIS did not immediately respond to requests for comment.