Meanwhile, new guidance from the White House states that insurers are not required to cover coronavirus tests for its members if a test is conducted solely as a condition of returning to work. The guidance clarifies that insurers must cover coronavirus testing for members without cost sharing if a health care provider determines a test is ‘medically appropriate.’ This indicates that tests required to screen for general workplace health and safety are not required to be covered by insurers.

Thus far, many insurers, including the nation’s largest – United Health Care – have erred on the side of providing full coverage for the cost of coronavirus tests without requiring them to be deemed medically necessary. However, a study funded by America’s Health Insurance Plans reveals the cost of continuing such a practice may reach $25 billion a year, which could be potentially detrimental to insurers if they are required to continue fully funding precautionary testing for workers.

At present, the White House’s guidance leaves the responsibility for payment of the tests open-ended. It remains to be seen what response may come from employees who are unable to afford the test or decline to pay, when one is required by employers as part of a standard screening process.

Presumptive Compensability Legislation Update

An ongoing issue affecting workers’ compensation is presumptive compensability legislation from states. At least 18 states have proposed workers’ compensation bills related to coronavirus, including expanding coverage for either frontline, essential or all workers. Some states have issued executive orders, bulletins, emergency rules and directives on workers’ compensation coverage for certain workers. It is a dynamic situation that warrants monitoring by employers.

An excellent resource for staying current on legislative activity is the National Council on Compensation Insurance (NCCI) site. NCCI is tracking state compensability presumption legislation and updates state statuses weekly. Its coronavirus workers’ compensation compensability presumptions chart is updated weekly with developments around state legislative activity in this area and can be accessed here

Coronavirus-Related Claims Rise

A new report released by Fisher Phillips law firm reveals that employment discrimination and work-from-home claims are on the rise. The study found a 43 percent increase in coronavirus-related lawsuits during the month of June.

Highlights of the report include the following findings:

• Unsafe working conditions and wage and hour concerns comprise the most common types of workplace class action claims.
• Forty-one class actions were filed in June, an increase of 65%.
• Employment discrimination, work-from-home leave, retaliation, unsafe working conditions and wage and hour concerns make up the top five claim classifications.
• California leads the nation in the number of coronavirus workplace lawsuits filed; Florida, New Jersey, New York and Texas round out the top five.

The Report findings are not surprising given the current environment. The main source of coverage for non-bodily injury claims brought by employees against their employers is Employment Practice Liability coverage (EPL). The terms, conditions, and exclusions in EPL policies vary considerably.

Coverage under EPL policies for claims arising from coronavirus is not a given by any stretch of the imagination. There are a number of fairly common exclusions that could preclude or limit coverage for many of the types of claims identified in the Report. Further, it is probably safe to say, none of the existing EPL policies contemplated the volatility or complexity our current environment.

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 PCOC Insurance Program EPIC broker at 877.860.7378 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. 

Paul Lindsay
Senior Vice President
EPIC Insurance Brokers & Consultants
916.576.1545 direct  |  877.222.0000 |  916.952.1609 cell
Paul.Lindsay@epicbrokers.com