Page 42 - Delaware Medical Journal - May/June 2020
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MSDIS CORNER
WORKER’S COMPENSATION
The intent of the worker’s compensation statutes is not to cover claims presented for communicable
and contagious diseases. However, there may be exceptions depending
on how and where a disease like
the coronavirus is contracted. Considerations are given based on “arising out of employment” or where an employer may place an employee
at an “increased risk” to contract
the disease/virus. Each situation is examined on a case-by-case basis
to determine compensability. Some examples of potential risks include:
Healthcareworkerwhocontracts the virus present in a health care facility.
Delivery employee whose infection is later linked to a known contaminated site
Serviceemployeewhoseinfection is later linked to a large gathering or event
DIRECTOR AND OFFICERS (D&O)
A D&O policy would likely not cover direct claims for bodily injury because of the bodily-injury exclusion. It would also not cover any allegations of pollution (in the event that it is suggested that the spread of the disease via public surfaces makes it
a pollutant). However, there are some scenarios in which D&O liability could potentially apply in the event of follow- on exposures and “event-driven” D&O litigation.
Derivative claims could arise out of a company’s leaders’ alleged failure to manage exposure to the coronavirus. These claims could involve allegations of mismanagement or failed oversight.
EMPLOYMENT PRACTICES LIABILITY (EPL)
As governments, companies, and other institutions respond to this crisis, the potential impact to the employees should be considered. The following actions may trigger an EPL claim:
Allegations of discrimination based on race/national origin related to the spread and origin of the virus
Allegations of retaliation in the form of negative reactions to employees who refuse to travel
For employees who are considered “at risk” due to recent travels, plans for employee isolation (quarantines) may resultinallegedharassment,allegation of career deprivation, etc.
Third-party EPL exposure involves claims alleging harassment or discrimination of clients, vendors, and othersduetorace/nationalorigin/recent travels.
FIDUCIARY LIABILITY
stock could impact the retirement savings of employee plan participants claims. It is possible that if this crisis tests the scope of coverage for health
by the employers (disability coverage, etc.), employees may allege wrongdoing offerings, employer chose vendors and products based on price versus the breadth of coverage). Fiduciary-liability policies can include coverage not only for retirement plan exposure, but also for acts, errors, or omissions in the (“employee welfare”) plan.
CYBER-CRIME LIABILITY
Potential media and privacy violations based
patients’ or employees’ health, or release of other protected information, could trigger cyber liability or regulatory impact.
The use of coronavirus as a subject in an attachment, or in conjunction with an email or a website, for delivery of ransomware (and other malware) is rapidly increasing, playing on a scared population.
Scams using the importance of the coronavirus response to businesses to dupe employeestoturnoverinformation(cyber) and/or money/assets (crime) could cause company losses.
Participating in this activity increases yourexposuretophishing,ransomware, and hacking of your network. Establish remote access practices, network protection practices, as well as training and preparedness practices.
PROFESSIONAL LIABILITY
Carriers are monitoring the crisis on a daily basis, providing premium relief, extended telemedicine coverage, as well as crossover coverage if needed. MSDIS monitors the carriers daily and is in a position to work with clients on how best to report changes in your practice.
MSD is working closely with our agency partner, USI, which has additional resources, tools, information, and links. Please visit USI’s coronavirus (COVID-19) page at www.usi.com/public-health- emergencies.
If you have any questions or concerns, please contact Sharon Ruth, Healthcare Client Advocate, at 302-397-0173.
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