Category Archives: Workers Compensation Insurance

Captive, General Liability Insurance, Line of Insurance, Risk Financing, Risk Management, Risk Transfer, Workers Compensation Insurance

Why Current Economic Conditions Are Perfect To Restructure Your Insurance Program

In our opinion, there is no better time to consider alternative risk transfer as a strategy to get more cost-efficient with respect to your current commercial property insurance, commercial liability insurance, workers compensation insurance, & commercial auto insurance.

As I write this the country and the world are about to exit the covid pandemic. If we frame the current conditions in terms of where we are in the property insurance, liability insurance & workers compensation insurance buying cycle; conditions couldn’t be more favorable to give your company a significant competitive advantage.

Taxes :

Since all 3 branches of government have changes hands in the last several years there are strong tailwinds pushing for significant tax increases which will erode corporate resources. We suggest utilizing a Captive Insurance strategy can give you significant tax efficiencies allowing you to keep the dollars inside your company to help reduce your variable cost structure. DOWNLOAD our Guide to Utilizing Captives by CLICKING  HERE.

Coverage Availability & Rates :

Currently, we are in the through of a “HARD MARKET”; where conditions favor the insurance carriers as they restrict coverage and increase rates. Insurance buyers are frustrated because they have limited options. Further, they feel squeezed, and rightly so. The carriers are pointing to the “Social Inflation” of liability and commercial auto claims due to the insane jury awards. Buyers are pointing to “profits” earned and surplus growth to counter that claim. We think the buyers have a legit gripe.

Risk As Strategy :

Smart forwarding thinking CFO’s and C-Suite Executives understand that if they can leverage their balance sheets by increasing their retentions EFFICIENTLY, they can gain significant cost advantages that they can bake into their COGS (Cost of Goods & Services). If done properly they can reduce their insurance program costs by 35% which allows them to grow profits, market share, or both. Remember every dollar you save in your insurance program falls directly to the bottom line.

To understand if your company could benefit from a partial or full-on program restructuring CLICK HERE to schedule a 15-minute call. In 5 questions we can figure out if the strategy has legs for your org.

Construction Practice Group Content, General Liability Insurance, Workers Compensation Insurance

Construction Manager Vs. General Contractor- What Is The Difference?

Your operations are as a General Contractor, but the contract you are looking to enter (or have entered) references to your organization as a Construction Manager. Is there an issue here?

Although at first glance you may see similarities between a General Contract (“GC”) and Construction Manager (“CM”), their difference in operations, and in turn exposures, are vastly different. Understanding the roles of a General Contractor (“GC”) and Construction Manager (“CM”) and their corresponding interests in a job is important to fully grasp the risk associated with each. 

What is a General Contractor and their role?

A General Contractor is typically hired after the owner has a finalized design in place (the design-bid-build model). When bidding on the job, a General Contractor submits complete plans in accordance with the pre-designed specifications. In hiring a General Contractor, the Owner in turn is trusting the General Contractor’s network of employees (direct labor) and subcontractors to perform the work at the job site. The General Contractor will then oversee the day-to-day activity of all direct labor and subcontractors at the job site. The General Contractor’s incentive is to complete the job under budget to maximize their profit. 

What is a Construction Manager and their role?

In contrast to a General Contractor, a Construction Manager’s services contract directly with the owner, typically for a fixed fee basis. The Construction Manager’s relationship with the Owner is more of a collaborative/consultative partnership. This brings a different relationship when compared to that of a General Contractor with Ownership since the Construction Manager is usually involved in the project from the start (the design-build model). The Construction Manager has input on the design phase of the project and works directly with the subcontractors during this phase. With this input comes a potential exposure to Professional Liability (E&O).

Defining your organization’s role early in the project is paramount, and a key factor to ensure you are protecting the organization. The contract will be the first place all parties look to when an incident occurs, and you want to be sure that your operations are clearly defined, and within the scope of your insurance coverage.

For more information on the scope of purchasing an insurance program for your project, contact one of our risk advisors at 914-357-8444 or click here to schedule a consultation meeting.

Claims Management, Commercial Auto, Construction Practice Group Content, Food & Beverage Practice Group Content, General Liability Insurance, Human Services Practice Group Content, Interview, Other, Risk Management, Transportation Practice Group Content, Workers Compensation Insurance, Workers Compensation Premium Audits

A Fireside Chat with A Claims Adjuster

Our Claims Advocacy Team got to sit down with a workers’ compensation claims professional who specializes in high exposure claims. They discussed a high exposure claim that wasn’t reported timely to the carrier after the incident occurred.  

 

Please Note: This article has been edited for clarification and to protect the identities of those involved in the interview.

 

We’ve decided to call this interview a “Fireside Chat with a Claims Professional”, please tell me, are you actually in front of a lit fire or a fireplace or at least a match? 

Yeah, I have a nice scented candle lit, some nice ambiance for the room. 

What is your current role in the claims process? 

I oversee about 500 files, not directly managing the day to day activities and tasks to move a claim forward, but looking at it from a strategic standpoint, whether it be return-to-work, a settlement, or the resolution of some litigated matters.  I also assist clients in resolving their existing claims files.

Can you describe what a heavy litigated file/high exposure claim is?

Yeah, high exposure is really like your catastrophic claims. For example, someone who might be a paraplegic, quadriplegic, someone that suffers from a traumatic brain injury, or spinal cord injury. Those are leaning towards your high exposure. 

Heavy litigated are files that are going to essentially set a precedent in future case law and how it can impact lawyers and insurers in the future. 

Is the insured involved in the process at all? Or by the time that the issue reaches your hands is it completely out of the insured hands? 

I feel like most of the time the employers (named insured) are aware that I’m working on their files as a resource. Oftentimes I can be involved in the claims review process to help bridge some of the gaps that may be present, with the knowledge to move that file forward. 

 

However, It depends on the account and the type of policy that’s written because they (the insured) may be hands-off. They may have paid their deductible and then the claim is no longer the named insured’s problem. So they leave the claim up to the carrier going forward. 

 

You mentioned once their deductible is paid they often have a hand-off approach because it is no longer ‘their money’. Does the claim, the amount paid on the claim, and the amount paid from the deductible have an effect on their insurance? 

 

It has an impact on their rating. It affects their E-Mod (Experience Modification factor rating). What this means is when the insured goes out into the market place the following year when they are up for renewal,  that claim may show up. the incurred (paid + reserve) impacts their ability to be written for new insurance and essentially tells them what premium they’ll be paying.

 

From what you just told me, it doesn’t make sense for the insured to take a hands-off approach? Does that sound fair? 

 

I certainly think that they (the insured) should be involved because this directly affects and impacts their future with Mod ratings and what they’re going to pay for in the future. But many people still take the backseat approach. 

 

Though this often depends on the level of comfort they have with their carrier. So while I say it’s a backseat approach. It may seem a little hands-off because they feel confident in their carriers’ ability and what we put forth.  They know that we’re going to mitigate their losses as much as possible to bring it to a resolution. 

 

That’s a great point. I imagine this is true with a long-standing client, a company who’s been insured with you for a long time, they know the team and have the same players handling their claims, and they can kind of step back because they know that your team has their best interest at heart.

 

Seasonal/Winter Claims

 

So you’ve seen it all, as you’ve climbed the ranks in insurance and the claims world. Is there one type of claim you encounter where you just roll your eyes when it comes because it is the most common type of claim? This could be a winter claim, an industry-specific claim. 

 

I call them your classic injuries. The two most common ones that are seasonally driven are your slip and falls. They are the most common denominator in terms of what you see for December, January, February March claim volumes that come in. Slip and Fall will rank really high for what we see. 

 

Aside from that, lifting injuries are common as well. 

 

Are these injuries specific to a particular industry?  Do you only oversee construction, real estate, healthcare or are these claims kind of general and not industry-specific? 

 

I think claims like these are industry-specific. Your transportation carriers/delivery services, you typically see slip and falls from the parking lots or while they’re making a delivery to someones’ home. The same goes for lifting injury, that’s primarily where you see those.

 

 Construction is a fall from heights, that’s typically the most common one.  

 

Then the healthcare we see lifting injuries because your home health aides, they’re typically assisting with a client/patient, having to maybe get them up out of bed. Some of those patients are unable to help themselves get up, and typically these employees have to just lift 150 pounds to 200 pounds by themselves with no assistive device to help them do that. We see a lot of lifting and back injuries & neck injuries from that.

 

It sounds like our essential workforce, especially during COVID times are the ones getting injured the most.

Yes. I can agree with that. 

Most Expensive Claim That You Personally Have Seen 

 

What is the most expensive claim you’ve seen? For clarification when I say the most expensive claim it can be a specific body part that is a high dollar amount.

It depends on how high you’re looking to go. I’ve seen some claims that are multi-million dollars.

 

What was that? A multimillion-dollar claim? What was that Injury? 

 

Without disclosing too much detail, one employee rode in the back of a pickup truck of another employee, as they departed the employer’s location and a severe injury was sustained. It’s a multimillion-dollar claim because this employee needs 24/7 care and will need to live in a facility probably for the rest of their life. 

 

That’s tragic and I don’t think many insureds think about claims on that level. Maybe large corporations, like the transportation organizations we discussed earlier (UPS, FedEx, DHL.) Those companies have a large workforce at a national level, so maybe they’re more familiar with those. But smaller commercial clients, don’t see or even think that this could even happen, and now they’re looking at a multimillion-dollar loss that they didn’t budget for when running their business. 

 

Absolutely, and when we start to look at what happened and gather the facts around the event we start to ask questions like “What is your policy about having employees on site after work?” and if there is any surveillance footage of the location and what was actually happening. 

Having that information and the punch cards to show when they came in and when exactly they left.  in a lot of states, there are a number of “coming and going” rules that would either support the acceptance of or denial of that accident/injury, being considered within the course and scope of employment.

 

This ties into my next question, from your side of things I’m sure it’s frustrating when these claims, and you see that more could have been done from the insured standpoint. How can the client help in the claims process so it doesn’t get to your level? At least so they do everything they possibly can to help your team out, to help the adjuster out before it gets to you and it becomes a multimillion-dollar claim.

 

What we see very often, and in the example, we just talked about this claim wasn’t reported to us until several months after the accident happened.

 

Wow. 

 

It is so important to get it to us, even if they are not sure if it would be covered under Workers’ Comp. Oftentimes they (the insured) might think it’s covered under liability or if it’s a motor vehicle accident they strictly put it in as an auto claim. 

 

My advice would be to file that incident report, that first report of injury as soon as the incident happens. Let the carrier investigate it and be sure to really partner with the carrier to ensure that you’re getting them the information that they’re requesting. Preserving any evidence is crucial as well. 

 

So if you have surveillance footage be sure to take that and send it over right away. Witness statements are critical.  When you speak to someone right after an event happens the event is going to be right fresh in their head.  As opposed to trying to track someone down a few months from now, or even a week from now, their recollection of the event might vary. These witnesses might have also spoken to other employees about things being said around the workplace and you risk getting a skewed version of what actually occurred. 

 

Even include the profile for the employee: what’s going on? Oftentimes you’ll see they’ve run out of vacation time and now they’ve filed this claim. Then, we learn from other employees that this person was just taking a vacation. So all that information about what’s going on in this employee’s life and other things they’re aware of like disability claims that were previously filed for this employee in conjunction with just responding to the investigation as soon as it happens is pivotal.

 

I gather that a lot of times in an instance where this doesn’t happen, the insured is afraid of the repercussions and the carrier is going to penalize them. However, you don’t get penalized for doing the right thing, which is if you know something happened, report it. This way the carrier can work with you and guide you and do the investigation early on instead of 4 months out. 

 

So circling back to the example you gave us. What happened in the time it took for that event to hit your desk? 

 

In this situation, it was a case of “Everything that can go wrong, did go wrong.” The insured originally never put it through to workers’ comp. Why? 1. They were trying to pay for anything out of pocket to avoid having the claim show up on their claim history. Secondly, they heard this employee had passed away. The employer didn’t realize that the employee had survived the accident. 

 

Once we finally did receive the claim, the employees that participated in the internal investigation before it reached the carrier were no longer available for comment. 

 

This sounds interesting.

 

I’m not sure if that answered your question, but I’m not sure if this approach helped anybody because the state where this incident occurred is a state that requires you to get prior authorizations, and the employee already incurred several million dollars worth of care before this claim even reached us. There was no direction and we couldn’t negotiate the rates with the home healthcare. At this point, we’re trying to go backwards to try to project what could occur in the future. 

 

What a mess. 

 

This approach doesn’t work well from the financial standpoint either because it doesn’t help the injured worker and then the carrier is trying to quickly piece together to make a decision before the state’s deadline for when you have to file a decision. There is a lot of scrambling. 

 

This sounds so stressful. The insured may be able to self-pay but those accidents need to be very minor. Even if the insured does self-pay there are still forms that need to be filled out and the insured is required to keep them on hand but it sounds like in this instance it was a major accident, to begin with. 

 

Thank you so much for sharing. This touches on what a lot of clients are asking and are worried about. At the end of the day, they all want the best insurance rates and the best insurance coverage, but the only way to achieve that is cooperation and reporting things timely when an employee is injured. 

 

It sounds like in this instance the insured didn’t try to reach out to the injured employee because they didn’t know if he was still alive.

 

There was no contact made. In fact, it was asked for us to not contact the family until we (the carrier) had the full scope of what was going on because at that point we didn’t want to contact the family and give them unrealistic expectations of what would be covered.  The insured definitely learned a lesson on what not to do next time. 

 

Something as simple as reaching out to the employee who was injured, or reaching out to the family if you can’t get the employee,  and they’re not showing up to work is a big step and a huge help to the claims team and to the employer as well. They should know where their employees are. 

 

I find it very important for the employer to be engaged in this process. Whether they are a short-term or a long-term employee. Following up and showing that area of concern, asking them when they might return to work. It makes that employee feel valued. It could also result in a quicker return to work.

 

A great point you’ve touched on. 

 

The employer/employee relationship  

 

I ran into an issue where I was trying to encourage one of my clients to reach out to an employee that had gone MIA for a little bit. Their response was they didn’t want to because they were afraid that the employee would consider it harassment and the employer’s view was “this employee is out on workers’ comp. We have no right to speak to them.”

 

I think a lot of insureds feel this way:  once the employee is out on workers’ comp they’re not allowed to speak to the employee. But, what you’re telling me is this is not truly the case. 

 

To my knowledge, there is no employment law that prevents the employer from checking in on their employees. Disability does that to check in with their employees to check-in and see how they’re progressing and how they’re healing. The employer may not be able to ask directly “When are you returning to work” but they can ask how they’re progressing. 

 

Depending upon the relationship between the employer and the employee, the employee may be forthcoming with more information. 

 

A lot of times these folks are just home and don’t have many other people to talk with. A lot of them are isolated, working-class individuals. So their family, friends, and everyone else is at work, so they’re longing for social interaction. The employer reaching out shows the employee that they’re concerned about their wellbeing and the employee can be eager to come back.

 

It sounds like this is just the kind thing to do. 

I don’t know of any law that stops someone from doing that so we encourage reaching out to the employee. 

I wasn’t meaning this from any legal standpoint. I just meant a lot of employers are like “Well they’re out on workers’ comp. We’re not talking to them”. They’re still your employees.

Especially when some of these employees have been with the company for 15+ years. How do you let this accident happen and not show empathy or concern for how the employee is doing? I think from the carrier side of this we’re in situations where we can’t have direct contact with the employee because they’re attorney represented. Therefore the employer is our outlet to keep us updated.

 

Oftentimes they (injured workers) go to a doctor’s appointment and they give their employer a call with an update: “I just went to my  Dr.’s appointment and I’m going to be out for another 4 weeks. I need to go to physical therapy and then go back to the Dr.’s.” 

 

As a carrier, it takes us a longer route to get this information because we have to call the provider to get information, and sometimes it takes two weeks plus to get the office notes, depending on how long it takes the physician’s office to have their notes dictated. 

 

It’s often helpful to the carrier if the employer maintains that relationship with the employee. It can help get that person back to work sooner, which benefits the claim. 

 

You’re detailing a really important dynamic which we try to communicate to our clients, and it’s nice to hear the same from you, another claims expert. It’s a group effort and the insured is a key player in how these claims can end up. It starts with keeping in contact. Once the adjuster loses contact with the claimant due to attorney representation it sounds like the employer is the key person to maintain that contact and relay important information to you guys. 

 

I think that this is something a lot of people often overlook because it’s not common knowledge.

 

Exactly what I was saying. 

 

This has given us a lot to think about, to share with our clients. Is there anything else that I didn’t touch on that you were hoping to talk about? Any inside scoops.

 

You know, I gave an example of a catastrophic claim and there are other claims out there. What I think is always a challenge for employers is the accident description itself. Sometimes that’s where they start scratching their head. The employer starts asking themselves “Do I report this? Do I not report this? Should I be taking a hands-on approach? Do I let the claims team just handle it?”

 

The employer may not want to reach out during the investigation period, because the employee may start asking questions that they don’t have the answers to. 

 

Right. 

 

I’ve seen all sorts of things, and the issue is that there are various grey areas in claims that can affect whether or not the claim will be accepted by the carrier. 

 

You mentioned some of the more common areas of claims and can some of those be prevented? 100% Yes, but some will inevitably happen. The other side of this is the quicker we can get these resolved, and the greater involvement we can have earlier on, the more likely we will help the injured employee return to work sooner. The more we can do to prevent these accidents from occurring, the safer the staff is and the better things can be. 

 

Risk Management 101. Preach! Thank you so much for your time. Our fireside, Vanity Fair-esque interview. This was a lot of fun! I may be reaching back out to you for a summer edition of this!  

 

Claims management is an integral part of your insurance purchasing process. If you have any questions or need help with claims management within your organization contact one of our Metropolitan Risk Risk Advisors for information on our available programs. 

Claims Management, Construction Practice Group Content, Line of Insurance, Risk Management, Workers Compensation Insurance

Protecting Your Workforce From Winter Related Illness

Winter weather creates new challenges for employers trying to protect their employees from work-related accidents. Snow and Ice. How are you protecting your employees from potential slip and fall incidents related to snow and ice? According to OSHA, 20% of all workplace injuries are due to trips, slips, and falls. 

Types Of Cold Related Illness

Every year, around 1,330 people die of exposure to the cold. These deaths are preventable with the proper clothing. The four types of Cold related illnesses are hypothermia, frostbite, chilblains, and trench foot.

Hypothermia

When your body is exposed to cold temperatures, the body begins to lose heat faster than it can be produced. Prolonged exposure will eventually use up the body’s stored energy.

Signs of Hypothermia:

Early Symptoms

  • Shivering
  • Fatigue
  • Loss of coordination
  • Confusion and disorientation

Late Symptoms

  • No shivering
  • Blue skin
  • Dilated pupils
  • Slowed pulse and breathing
  • Loss of consciousness

First Aid for Hypothermia

  1. Move employee to a warm room or shelter
  2. Remove their wet clothing
  3. Warm the center of their body first-chest, neck, head, and groin-using an electric blanket, if available; or use skin-to-skin contact under loose, dry layers of blankets, clothing, towels, or sheets.
  4. Warm beverages may help, but do not give alcoholic beverages. Do not try to give beverages to an unconscious person
  5. After their body temperature has increased, keep victim dry and wrapped in a blanket
  6. If the victim is unresponsive begin CPR

 

Frost Bite 

Frostbite is caused by freezing. It causes loss of feeling and color in the affected areas. Frostbite most commonly affects the nose, ears, cheeks, chin, fingers, and toes. It can cause permanent damages to body tissue and severe cases can lead to amputation. 

 

Symptoms:

  • Reduced blood flow to hands and feet (fingers or toes can freeze)
  • Numbness
  • Tingling or stinging
  • Aching
  • Bluish or pale, waxy skin

First Aid

  • Get into a warm room as soon as possible.
  • Unless absolutely necessary, do not walk on frostbitten feet or toes-this increases the damage.
  • Immerse the affected area in warm-not hot-water (the temperature should be comfortable to the touch for unaffected parts of the body).
  • Warm the affected area using body heat; for example, the heat of an armpit can be used to warm frostbitten fingers.
  • Do not rub or massage the frostbitten area; doing so may cause more damage.
  • Do not use a heating pad, heat lamp, or the heat of a stove, fireplace, or radiator for warming. Affected areas are numb and can be easily burned.

Chilblains

 Chilblains are the inflammation of blood vessels in the skin in response to repeated exposure to cold but not freezing air. 

Symptoms

  • Small, itchy red areas on your skin, often on your feet or hands
  • Possible blistering or skin ulcers
  • Swelling of your skin
  • Burning sensation on your skin
  • Changes in skin color from red to dark blue, accompanied by pain

First Aid

  • Keep hands and feet warm and dry
  • Wear gloves & socks
  • Change damp gloves and socks when needed
  • Move affected person inside

Cold related illnesses aren’t the only hazard that an organization faces with winter. Slip and fall injuries are more prevalent in the winter as well.

OSHA, Workers Compensation Insurance

OSHA 2020 Workplace Injury Reports Due By March 2, 2021

The Occupational Safety and Health Administration (OSHA) reminds employers that it began collecting 2020 workplace injury data on Jan. 2, 2021.

When are OSHA 300A Reports Due?

All OSHA 300a records must be submitted electronically by March 2, 2021.

Organizations with 250 or more employees are currently required to keep OSHA injury and illness records for up to 5 years. OSHA requires that all organizations submit their injury and illness data for 2019 electronically by March 2, 2021. You can submit records electronically through the Injury Tracking Application available here.

The form to used is OSHA Form 300A Summary of Injuries. Current and former employees have the right to request further injury records via the OSHA 300 Report. It’s very important that you true up your OSHA 300 reports for the year then complete the OSHA 300A report and post it on-site or sites. Failure to do so can trigger fines and or an investigation by OSHA. OSHA can swing by and ask for evidence of your compliance at any time. Need help? Download our updated OSHA Reporting Guide for 2021 and share it with HR & or Safety Compliance.

F.A.Q.s – CLICK HERE TO VIEW OSHA’s FULL LIST OF F.A.Qs

What is a recordable incident? 

Check out this flowchart.

What is a reportable incident?

Check out this flowchart.

Do I need to fill out an OSHA 300A log for every location?

You must keep a separate OSHA 300 Log for each establishment that is expected to be in operation for one year or longer.

Do I need to keep OSHA injury and illness records for short-term establishments (i.e., establishments that will exist for less than a year)?

Yes, however, you do not have to keep a separate OSHA 300 Log for each such establishment. You may keep one OSHA 300 Log that covers all of your short-term establishments. You may also include the short-term establishments’ recordable injuries and illnesses on an OSHA 300 Log that covers short-term establishments for individual company divisions or geographic regions.

Some of my employees work at several different locations or do not work at any of my establishments at all. How do I record cases for these employees?

You must link each of your employees with one of your establishments, for recordkeeping purposes. You must record the injury and illness on the OSHA 300 Log of the injured or ill employee’s establishment, or on an OSHA 300 Log that covers that employee’s short-term establishment.

How do I record an injury or illness when an employee of one of my establishments is injured or becomes ill while visiting or working at another of my establishments, or while working away from any of my establishments?

If the injury or illness occurs at one of your establishments, you must record the injury or illness on the OSHA 300 Log of the establishment at which the injury or illness occurred. If the employee is injured or becomes ill and is not at one of your establishments, you must record the case on the OSHA 300 Log at the establishment at which the employee normally works.

 

General Liability Insurance, HR Challenges, Workers Compensation Insurance

Should We Require Our Employees To Be Vaccinated For Covid 19

Should my company mandate vaccinations?  Like everything Covid related, the answer is complicated. According to employment law attorney  Rich Landau of Jackson Lewis, their tentative position is that requiring employees to be vaccinated for COVID 19 is very difficult to mandate. This is primarily due to EAU (Emergency Use Status) of the vaccine, legal risks including discrimination, and employee relations challenges as you try and navigate this HR terrain.

 

For those clients less risk-averse we have a sample draft policy courtesy of Jackson Lewis. For Metropolitan Risk clients you can obtain the sample Covid vaccine policy by contacting your Account Executive. They are instructed to give you our draft sample. If you are not a Metropolitan Risk client, feel free to reach out to one of our Risk Advisors for a brief discussion.

According to our THINK HR partner and our partners at Jackson Lewis, there is an expectation that the EEOC ( Equal Employment Opportunity Commission ) will issue additional guidance with respect to ADA & Title VII issues with respect to employers mandating whether employees MUST be vaccinated.

 

Our partners in our discussions point to the influenza policies for guidance on how to proceed with the Covid vaccinations. Most employers ENCOURAGE rather than mandate which can be a safe haven should legal challenges arise. According to Rich Landau of Jackson Lewis, “even if the EEOC allows employers to mandate COVID vaccinations this will not elevate the risk of other non-discrimination, state laws, or workers compensation claims if employees suffer a serious reaction while the vaccine is in EAU status.”

There are numerous complications and challenges that may arise if you mandate the vaccine.

Potential Employer-Related Challenges With Requiring/Encouraging The Covid-19 Vaccine

  • Is getting the vaccine Mandated or voluntary – – who is mandated?  
    • The priority of recipients (Which staff members or clients should be vaccinated first?)
  • Incentives to receive it- Does your current organization offer incentives for the Flu shot? 
    • Covid-19 vaccine only or influenza as well
  • Who pays for the actual vaccine, the time needed to get the vaccine
  • Process for inoculation
  • Tracking status
  • Handling poor reactions – – paid time off
    • How are you managing employees or clients that have adverse reactions to the vaccine?
  • Ensuring confidentiality
    •   What if you run out of the vaccine
  • Covid-19 protocols while in midst of process/after the process is completed
    • What protocols will stay and what protocols will change? How will you as the employer manage these new expectations?
  • Addressing exceptions – – medical, religious, generalized fear
  • Handling non-compliance – – remote work, leaves of absence, discipline

The last point to consider beyond your Employee stakeholders maybe your customer base. As an example for those companies providing services to senior care organizations, like Home Health Care Agencies, Nursing Homes, and Assisted Living Facilities it may be suggested that you disclose to your customer base that your organization suggests, not mandates vaccinations. This disclosure should be made at either point of sale /contract, or communication piece sent out to your customer base. This may protect your organization from liability should your customer base look for damages at some future point. This can be a very sensitive topic as each business needs to arrive at its own business decisions with respect to disclosures. There is no silver bullet here, your goal as with all risk-related decisions is to manage the exposures relative to potential downside losses in BOTH columns of the decision tree.

As you can see invoking a set vaccine policy to benefit all stakeholders is vexing, to say the least.

We will continue to provide updates to this new landscape as we receive them. We encourage you to speak with a Risk Advisors for further guidance on the matter BEFORE invoking a set policy. Please mindful that this is a very dynamic and fluid landscape, changing almost weekly. Contact a Risk Advisor at 914-357-8444. Thank you

Construction Practice Group Content, Food & Beverage Practice Group Content, HR Challenges, Human Services Practice Group Content, New York, Risk Management, State Law, Transportation Practice Group Content, Workers Compensation Insurance, Workers Compensation Premium Audits

New York State’s Updated Sick Leave Law

New York State’s Paid Sick Leave policies were introduced on April 3, 2020, and went into effect on Sept. 30, 2020.

On January 1, 2021, employees may start using their accrued leave. 

The number of sick leave hours required is based on the number of employees that work within your organization:

0-4 Employees:

If your net income is $1 Million or less, employers must up to 40 hours of unpaid sick leave. If net income is greater than $1 Million, employers must provide up to 40 hours of paid sick leave 

5-99 Employees: 

Employers must provide 40 hours of paid sick leave per calendar year.

100+ Employees:

Employers must provide up to 56 hours of paid sick leave in a calendar year. 

How sick leave is accrued 

Employees begin accruing leave on September 30, 2020. Leave must be accrued at the rate not less than one hour of leave accrued for every thirty hours worked. 

An alternative to the accrual of sick leave by hours, employers may choose to provide the full amount of sick leave at the beginning of each calendar year (ex. An employer with 50 employees may choose to provide 40 hours of sick leave starting Jan.1 of yea year or at the beginning of a 12-month period determined by the employer. NOTE: Upfront sick leave cannot be subject to later revocation or reduction if the employee works fewer hours than anticipated by the employer.). 

Who is eligible

All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime-exempt status. Federal, state, local, and government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporates are covered.

Permitted Usage of Sick Leave 

After Jan 1, 2021 employees may use accrued leave following a verbal or written request to their employers for the following reasons impacting the employee or a member of their family for whom they are providing care or assistance with care. 

Sick Leave: 

  • For Mental or physical illness, injury or health conditions, regardless of whether it has been diagnosed or requires medical care at the time of request for leave
  • For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or need for medical diagnosis or preventative care.

 

Safe Leave:

  • For an absence from work when the employee or employee’s family member has been the victim of domestic violence as defined by the State Human Rights Law, a family offense, sexual offense, stalking, or human trafficking due to any of the following as it relates to the domestic violence, family offense, sexual offense, stalking, or human trafficking: 
    • to obtain services from a domestic violence shelter, rape crisis center, or other services program; 
    • to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members; 
    • to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding; 
    • to file a complaint or domestic incident report with law enforcement; 
    • to meet with a district attorney’s office; 
    • to enroll children in a new school; or 
    • to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee. 

Leave Increments 

Employers are permitted to require that leave be used in increments (e.g., 15 minutes, 1 hour, etc.) but may not set the minimum increment at more than 4 hours.

Employers must notify employees of these leave increment policies in writing or by posting a notice in the worksite prior to leave being acured, any restrictions in their leave policy affecting the employees’ use of leave, including any limitations on leave increments 

Rate Of Pay

Employees must be paid their normal rate of pay for any paid leave time under this law, or the applicable minimum wage rate, whichever is greater. No allowances or credits may be claimed for paid leave hours, and employers are prohibited from reducing an employee’s rate of pay for sick leave hours only. 

An employer cannot retaliate against an employee in any way for exercising their rights to use sick leave. Furthermore, employees must be restored to their position of employment as it had been prior to any sick leave taken. Employees who believe they have been retaliated against for exercising their sick leave rights should contact the department of labor’s anti-retaliation unit.

Record Keeping

Employers are required to keep payroll records for 6 years, which must include the amount of sick leave accrued and used by each employee on a weekly basis.

Employers are required to provide within three business days a summary of the amount of sick leave accrued and used by the employee in a current calendar year or any previous calendar year, at the request of the employee.

 

Employees who believe that they have been retaliated against for exercising their sick leave rights should contact the Department of Labor’s Anti-Retaliation Unit at 888-52-LABOR or LSAsk@labor.ny.gov. 

 

If you still have questions, contact a Risk Advisor at 914-357-8444. If they cannot help you they’ll direct you to an employment lawyer that can. 

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How Workers’ Compensation Class Code #8873 “Telecommuter Reassigned Employees” Can Help You Save Money On Your Insurance Premium

The New York Workers’ Compensation Insurance Rating Board (NYCIRB) has released a new class code for ‘Telecommuter Reassigned Employees’.

If you are a business owner you might be wondering how do I adjust my workers’ compensation rates for employees that we kept on the payroll, but did not actually perform their duties? It doesn’t make sense to pay workers comp premiums for an expensive labor class during a workers comp audit when those employees were essentially paid to sit home. 

 

Over the past eight months, we have experienced difficult and trying times due to the pandemic. One critical aspect of the first few months of the pandemic was the ability of employers to keep their employees on the payroll whether or not they were actually performing their duties. The PPP program went a long way in helping employers achieve that important concession. 

 

The question that has come up recently with many employers is how do we properly account for that portion of payroll we paid our workers when they actually didn’t perform their actual duties. In industries like construction or healthcare, the insurance costs basis can generate a lot of insurance premiums because the class codes for those labor components have a high insurance rate tied to it. 

Now there is a relief for workers compensation premiums for these “reclassified” employees.

The New York Workers’ Compensation Insurance Rating Board (NYCIRB) has released a new class code for ‘Telecommuter Reassigned Employees’.

Temporarily Reassigned Employees, which establishes new classification code 8873, Telecommuter Reassigned Employees, requires that it be applied to the payroll of employees who, during New York’s stay-at-home order related to the COVID-19 pandemic (and future stay-at-home orders), are reassigned to either (a) not perform any work duties (idle), or (b) perform clerical work duties at home that they otherwise would not perform. The rate per $100 of payroll for Classification 8873 will mirror the rate for Classification 8810 (clerical office employees).

Further, this provision is applicable at the start of New York’s stay-at-home order and for up to 30 days after its conclusion. Employees who are classified to code 8871, Telecommuter Clerical Employees, are to remain classified as 8871.

In other words, the new 8873 classification only applies to employees who are reassigned and meet one of the two conditions described above. These amendments are effective for all new and renewal policies effective May 1, 2020, as well as to all in-force policies as of March 16, 2020.

We have provided the NYSIF Q&A sheet of commonly asked questions about this new workers’ compensation class code.

We would be happy to review the parameters of the new class codes and the impact it may have on your business. Please contact one of our Risk Advisory to discuss further.

Workers Compensation Insurance

New Jersey’s New COVID-19 Workers’ Compensation Legislation Favors Employees

On Sept 14, 2020, New Jersey Governor Phil Murphy signed into law Senate Bill 2380 (S2380), expanding access to workers’ compensation benefits for workers infected with COVID-19. This bill retroactively covers Covid-19 positive “essential” workers up to March 9, 2020.

This new law diminishes the usual requirement of a worker to prove that his injury or illness was caused on the job. This new law presumes that essential workers’ illnesses arising during the pandemic are related to their work.

Employers can only rebuttal these presumptions if the employer can demonstrate that the essential worker was not exposed to COVID-19 at their place of work.

The law redefines “essential employee” as an employee in the public or private sector who, during a state of emergency: (1) is a public safety worker or first responder; (2) is involved in providing medical and other healthcare services; (3) performs functions which involve physical proximity to members of the public and are essential to the public’s health and safety (e.g. grocery clerk); and (4) any other employee deemed an essential employee by a public authority. It should be noted, however, this presumption will only apply if the employee contracts COVID-19 during the State of Emergency.

Note: Gov. Murphy declared a State of Emergency in New Jersey on March 9, 2020, and has extended that order indefinitely.

New York State currently does not have a similar law but is considering rebuttal presumption legislation also.

Claims paid in relation to this bill would be excluded from consideration when calculating an employer’s Experience Modification Factor, negating any direct impact on the employer’s workers’ compensation premium.

When you see a state’s legislate insurance coverage like this it has a downstream adverse effect in that local market. At the very least, you may see insurance rates increase due to the additional exposure they are asked to carry. The work comp rates currently in effect did not contemplate coverage for a pandemic. Further, they cannot recoup their losses through the EMR as they do with all other claims which means they need to take rate increases. Exactly the wrong time to saddle NJ business owners with higher costs.

Fortunately, as a business owner who is paying attention, there are steps you can take to mitigate this. For More Information on how this new legislation may affect your New Jersey business, contact a Risk Advisor at 924-357-8444.

 

Source: https://www.natlawreview.com/article/nj-law-expands-access-to-workers-comp-benefits-essential-employees-infected-covid-19