Workers’ Compensation Capacity for Professional Employer Organizations (PEO)

Workers’ Compensation has long been a foundational pillar in the product offering of the PEO model.  Not all carriers are up to the task of offering this line of coverage to a PEO, however, mostly due to the actuaries and legislative complexities and rules that are different by State.  In no State, statute insurance regulations and actuarial rules (NCCI, WCIRB, etc.) actually integrate.  While there are added levels of complexity for carriers to administer and service PEO clients, especially with regard to master policies, there are many reasons our carrier partners have dedicated themselves to this space.  PEO workers’ compensation programs consistently enjoy lower loss ratios and shorter claims development trends that non-PEO monoline comp.  Most PEOs are sophisticated risk management and underwriting organizations with a commanding understanding of how to manage and implement a profitable workers’ compensation program.  Typically, PEOs offer robust loss control and prevention guidance to their client companies; assisting small business with attaining much safer work environments than they would otherwise be able to achieve.  They also employ internal claims management staff who are dedicated to ensuring their injured workers are treated thoroughly and expeditiously, providing the best possible outcome for all parties.  For these reasons, carriers who decide to entertain PEOs as clients are rewarded with reliable, profitable, long-term carrier/client relationships.

Recent movements

This space continues to evolve.  The last 12-18 months has borne witness to many marketplace adjustments as each carrier strives to find their ideal niche within the space.  Key Risk Insurance Company (a WR Berkley Company) is a powerful new addition to this elite club.  Having been working in the comp space for nearly 35 years, they entered the PEO arena just this year, bringing with them an impressively diversified portfolio with over $2 billion in financial prowess and an A+ (Superior) AM Best rating.

Current players

A workers’ compensation program can be structured in a few different ways, depending on the needs, client makeup and financial positioning of the PEO.  For this reason, it is very important that any given PEO has the right carrier partner at their side.  Typically, these programs can be broken up into two main categories, Guaranteed Cost and Loss Sensitive.  A Guaranteed Cost program can offer a PEO a clear and understood total liability.  Pricing is based on 100% coverage of all approved exposures and rates are understood from the onset of the policy through policy expiration.  Guaranteed Cost programs, however, can have more restrictive underwriting and jurisdictional limitations than a Loss Sensitive program.  There are many different ways to structure a Loss Sensitive program.  In general, these programs are splitting the total anticipated claims costs between the PEO and the carrier; this cost is an unknown, however our predictive pricing models have come a long way in nailing down actual program outcomes.  Benefits to this model include broader underwriting guidelines and more competitive pricing.  These programs can tie a PEO’s assets up for an extended period of time, however, as collateral is held by the carrier until all claims for a given policy term have fully matured, which can take years.  

Impacts of COVID-19 on Workers’ Compensation Market Appetite

The advent of COVID-19 has brought about major changes to the marketplace for all workers’ compensation carriers, not just PEO partners.  Many carriers have issued a moratorium on covering any healthcare exposures.  Others are now adding jurisdictional considerations to these risks, with exclusions applying specifically in presumptive states.  Some carriers have added additional underwriting requirements for industries with residential delivery exposures, such as requiring a deductible to cover smaller frequency issues such as dog bites.  Nearly all carriers have added additional pandemic screening questions to their underwriting requirements to include supplemental applications, especially for front line industries such as restaurants, nursing homes, home health and retail.  This is likely a change which will endure long after this current pandemic passes. 

These market adjustments aside, PEO carriers continue to remain engaged and enthusiastic about their PEO clients.  That being said, PEOs should look closely at their composition of clients and take care to place high risk or high exposure entities outside of their master policies as makes sense in an effort to protect their experience modification and loss sensitive positions.

Call to Action

Every PEO carrier is as different in their approach to thriving in this industry as is every PEO.  How do you know your PEO workers’ compensation program is placed with the best carrier partner to cater to your needs and methods of operations?  Thankfully, this industry has been graced with the benefit of the lifelong dedication of some really brilliant minds to help answer that question.  My mentor, Paul Hughes, for example, has successfully created 7 workers’ compensation insurance programs specific to PEO over the past 19 years.  Under his guidance, these programs have rendered nearly $2 billion in workers’ comp placements for PEOs to date, with no signs of slowing down. 

If you would like to better understand all market and program offerings available to your PEO, we would love to help.

Paul Hughes321.217.7477phughes@libertateins.com
Sharlie Reynolds305.495.5173sreynolds@libertateins.com
David Burgess321.436.8214dburgess@libertateins.com

Report: COVID-19 Accounts for 1-in-9 California Workers’ Comp Claims in 2020

Wow — We are seeing a depletion of capacity/increased costs for health care and other “client-facing” industries.  The why —

“CWCI says that brings the total for the year to 41,861 claims, or 11.2% of all California job injury claims reported for accident year 2020. Those claims included 224 death claims, up from 160 reported as of Aug. 10.”

.005 of all claims in California are a COVID19 fatality year to date.  The unknowns are the reopens, adjusted reserves and longevity of the severe and critical patients.  Still much unknown –

September 28, 2020

The California workers’ compensation COVID-19 claim count continued to grow in August, albeit at a much slower rate than in July, with new data showing that as of Sept. 21, the state had recorded 5,130 COVID-19 claims with August injury dates, according to data compiled by the California Workers’ Compensation Institute.

CWCI says that brings the total for the year to 41,861 claims, or 11.2% of all California job injury claims reported for accident year 2020. Those claims included 224 death claims, up from 160 reported as of Aug. 10.

The latest claim count shows that the number of COVID-19 claims reported to the Division of Workers’ Compensation doubled from May to June, then increased another 16% in July. The numbers reported for August, however, fell sharply, even accounting for the lag in the reporting of COVID-19 claims, according to CWCI.

The CWCI projects there could ultimately be 8,208 COVID-19 claims with August injury dates. Given that the latest tally suggests COVID-19 claim volume may have peaked in July, CWCI is now projecting 48,086 COVID-19 claims with January through August injury dates, which is less than the January through July projection from last month.

CWCI reports that the distribution by industry shows health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.1% of the claims recorded for the first 8 months of this year, followed by public safety/government workers who accounted for 15.8%. Rounding out the top five industries based on COVID-19 claim volume were retail trade (7.6%), manufacturing (7.6%), and transportation (5.0%). In addition, the percentage of denied COVID-19 claims declined to 28.6% from CWCI’s May report of 35.5%.

Related:

Paid Leave Concerns When Employees Get COVID-19 Twice – Law360.com

https://www.law360.com/articles/1291176

Law360 (July 15, 2020, 4:21 PM EDT) —

Mark Konkel
Mark Konkel
Maria Biaggi
Maria Biaggi
Nicholas Kromka
Nicholas Kromka

The coronavirus has been novel in more ways than one. On one end of the spectrum, employers confront new questions of almost philosophical dimensions.

How much risk is too much risk? What risks should we ask our employees to accept? Where is the line between ordinary risk — the kind that employees undertake when they walk out the door every day to go to work — and the extraordinary risks posed by a pandemic from which, in the end, employers cannot entirely shield their workforces?

A seemingly more mundane novelty is the plethora of new COVID-19 laws and regulations. Compliance should just be a matter of reading a statute and, well, complying. But even there, an evolving real-world pandemic potentially makes compliance just as complicated.

One example we have helped our clients wrestle with involves exactly this kind of straightforward-on-paper, tricky-in-practice complexity.

One requirement of the Families First Coronavirus Response Act appears to be simple: When an employee working for an employer with under 500 employees gets sick with COVID-19, is seeking a COVID-19 diagnosis, or is subject to a quarantine order of a doctor or a government, they are entitled to up to 80 hours of emergency paid sick leave.

And that made perfect sense when the law was hurriedly drafted: You get sick once, and you do not get sick again, right?

Wrong. Mounting evidence now shows that contracting COVID-19 does not confer absolute immunity and that many individuals have now contracted the novel coronavirus more than once. So what happens when an employee exhausts his or her 80-hour emergency paid sick leave entitlement, recovers from COVID-19, and then contracts it again?

What are the basic requirements of the FFCRA?

Under the FFCRA, full-time and part-time employees who are unable to work or telework due to one of the qualifying reasons below may take up to 80 hours of paid sick leave.

  • The employee is subject to a federal, state or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  • The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to the first or second reason above.
  • The employee is caring for his or her child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID–19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the secretary of the U.S. Department of Health and Human Services in consultation with the secretary of the U.S. Department of the Treasury and the secretary of the U.S. Department of Labor.

An employee who contracts COVID-19 may be eligible to take 80 hours of emergency paid sick leave for one or more of the above-qualifying reasons. However, they may only take 80 hours of paid sick leave once.

That is, the language of the FFCRA is arguably quite clear that two weeks of emergency paid sick leave is all an employee is entitled to within one Family and Medical Leave Act period, i.e., 12 months, whether a calendar year, another fixed 12-month leave year, etc.

The new legislation, effective April 1 to Dec. 31, was quickly drafted in March when the coronavirus was still novel. But while there is still so much that is unknown about COVID-19, we can no longer assume that an individual who has been infected with COVID-19 and recovers, will not be able to get the virus again.

In the U.S., people are reporting testing positive for the virus after having recovered from an initial infection.[1] According to the Centers for Disease Control and Prevention:

When a positive test occurs less than about 6 weeks after the person met criteria for discontinuation of isolation, it can be difficult to determine if the positive test represents a new infection or a persistently positive test associated with the previous infection. If the positive test occurs more than 6-8 weeks after the person has completed their most recent isolation, clinicians and public health authorities should consider the possibility of reinfection.[2]

And, of course, persons who are determined to be potentially infectious should undergo evaluation and remain isolated.

In April, the DOL issued guidance which also confirms the plain language of the FFCRA’s FMLA Expansion Act. That is, employees are not entitled to any more than 12 weeks of FMLA leave in a 12-month period, regardless of whether an employee takes paid leave under the FMLA Expansion Act or regular unpaid FMLA leave for reasons unrelated to COVID-19.

The FMLA Expansion Act does not add additional job-protected leave time. Rather, it adds additional qualifying reasons to take leave. Thus, an employee who takes 12 weeks of FMLA leave, does not have an additional 12 weeks of leave under the act because he or she is, for example, experiencing symptoms of COVID–19 for a second time and seeking another medical diagnosis.

Moreover, employees who may have taken FMLA leave for reasons other than the public health emergency in the preceding leave year may have reduced leave time under the FMLA for purposes of the public health emergency. This may have the unfortunate effect of potentially leaving those who are most vulnerable with less leave time than employees who have not needed to use regular unpaid FMLA leave for their own serious health condition. Also, the FFCRA only applies to employers with 500 or fewer employees.

New York employers are required to comply with both the FFCRA and the New York Emergency Paid Sick Leave Law, or EPSL. The benefits available under the EPSL vary based on the size and net income of the employer.

Under the EPSL, private employers with 100 or more employees are required to provide their employees with at least 14 days of paid sick leave. Employees in New York are eligible for benefits under the EPSL when the benefits provided by that law are in excess of those provided under the FFCRA.

In this situation, employees would be entitled to federal benefits, plus the difference in benefits provided under the FFCRA and the EPSL. In other words, no double dipping. And, unless the employee has to care for a family member with a serious health condition, he or she would not be entitled to New York paid family leave.

Given all this, there is no statutory obligation under the FFCRA to provide employees with additional paid leave in the unfortunate circumstance that an employee contracts the virus twice. However, this may not always be the answer under state law.

For example, the New York State Department of Health and New York State Department of Labor recently issued guidance providing that health care employees who test positive after a quarantine or isolation may receive paid sick leave for up to two additional periods of quarantine or isolation.

Employers could certainly opt to pay employees during a second quarantine, but they are not required to under the current federal law. Alternatively, employers could provide unpaid time off, if the employee has exhausted his or her paid time off.

An employer may also be obligated to consider leave as a reasonable accommodation for individuals whose disabilities put them at greater risk from COVID-19, unless such an accommodation would cause an undue hardship on the employer.

So that ends the inquiry, right? Again: wrong.

What’s an employer to do?

We are always wary of simple answers to tricky questions. One answer to the questions posed above is deceptively simple: If an employee has exhausted her 80 hours of FFCRA leave, it is exhausted, and she is not entitled to a second round of leave.

While that position is straightforward and legally defensible, it misses a bigger context. If an employee is not entitled to additional leave but has contracted COVID-19 twice (or more), a sensible employer, or at least, one that is interested in avoiding getting sued by other employees, will not allow the sick employee to return to work. But if an employer takes the position that an employee ordered to stay home is not entitled to pay, it opens up a whole other can of worms.

One policy arguably underlying the pay protection provisions of the FFCRA is to encourage candor: Employees will be less likely to ignore or minimize their own symptoms, and to tell their employers about what is going on, if they are not concerned about losing compensation as a reward for their honesty.

And with federal unemployment benefits of $600 per week in addition to the normal level of benefits still in place, an employee may well consider continuing to stay home or eventually finding another job.

These concerns underscore why many larger employers who are not subject to the FFCRA’s coverage because of their size have gratuitously offered pay protection to sick employees: You want to know that employees are sick, tell them to stay home to avoid community spread in the workplace, and — perhaps most importantly to your longer-term business goals — actually retain a workforce you hope can return soon enough in full force.

Obviously, employers must first and foremost ensure compliance with applicable law, including the FFCRA. But navigating the pandemic is not just a question of strict compliance. Arguably, protecting continuity of operations, the health of the workforce and an employer’s long-term investment in its workforce is at least as important as ensuring any shorter-term compliance.

While this article cannot address how a specific employer will weigh those potentially competing concerns, smart employers consider all of those impacts in deciding whether or not to maintain a leave policy that may exceed, not just meet, the requirements of the FFCRA.

Regardless of whether the U.S. is in the first or second wave, the possibility is now evident that employees may get the coronavirus for a second time, while having already exhausted the leave entitlements under the FFCRA, state leave laws and the employer’s PTO policy. Employers should be prepared to face this new obstacle, particularly as cases in the U.S. are not abating.


Mark A. Konkel is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren LLP.

Maria B. Biaggi is an associate at the firm.

Nicholas J. Kromka is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Protecting Workers From Coronavirus

What Is Coronavirus?
According to the World Health Organization(WHO), coronavirus is a family of viruses that cause illnesses ranging from the common cold to more severe diseases. Common signs of infection include headache, fever, cough, sore throat, runny nose and breathing
difficulties. In more severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death. Individuals who are elderly or
pregnant, and anyone with preexisting medical conditions are at the greatest risk of becoming seriously ill from coronaviruses.

How Does Coronavirus Spread?
Although the ongoing outbreak likely resulted from people who were exposed to infected animals, COVID-19 can spread between people through their respiratory
secretions, especially when they cough or sneeze. According the Centers for Disease Control and Prevention (CDC), the spread of COVID-19 from personto-person most likely occurs among close contacts who are within about 6 feet of each other. It’s unclear at this time if a person can get COVID-19 by touching a surface
or object that has the virus on it and then touching their own mouth, nose or eyes.

CDC Interim Guidance
In order to help employers plan and respond to COVID19, the CDC has issued interim guidance. The CDC recommendations include:

  • Actively encourage sick employees to stay home. Employees who have symptoms of acute respiratory illness are recommended to stay home and not
    come to work until they are free of signs of a fever and any other symptoms of COVID-19 for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines. What’s more, employees should be instructed to notify their supervisor and stay home if they are sick.
  • Separate sick employees. Employees who appear to have acute respiratory illness symptoms (e.g., cough or shortness of breath) upon arrival to work or
    become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their nose and mouth with a tissue when coughing or sneezing.
  • Emphasize hand hygiene. Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60%-95% alcohol, or
    wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
  • Perform routine environmental cleaning. Employers should routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops and doorknobs.

Coronavirus, Pandemics and Workers’ Compensation

An informative article from the Insurance Journal on Coronavirus, Pandemics and Workers’ Compensation.

So the below begs the question of what is peculiar to one’s occupation/scope of work.  Why do I see the lawyers and the courts having a time and expense field day on what is peculiar.

To check myself, I went to Websters to look up said word.

peculiar

adjective

pe·​cu·​liar | \ pi-ˈkyül-yər  \

Definition of peculiar

 (Entry 1 of 2)

1: characteristic of only one person, group, or thing : DISTINCTIVE… a drowsy fervour of manner and tone which was quite peculiar to her.— Thomas Hardy
2: different from the usual or normal:
a: SPECIAL, PARTICULARa matter of peculiar interest
b: ODD, CURIOUSIt seems peculiar that she would leave town without telling anybody.
c: ECCENTRIC, UNUSUALThe play had a zany plot and very peculiar characters.Note
– thus
….”means will be a much bigger deal than this post represents.  those that are most exposed are they those in contact with the general public (service/hospitality) -”  This will definitively add workers’ compensation exposure.

A pandemic is defined as, “an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population.” Although the media lives by the motto, “If it bleeds, it leads,” declaring a pandemic anytime more than a few people contract a virus, this time even the World Health Organization (WHO) is warning of a possible Coronavirus (COVID-19) pandemic with one Coronavirus expert, Professor Gabriel Leung, Chair of Public Health at Hong Kong University, saying that unchecked, the virus could infect 60 percent of the global population.

My intent is not to accuse the media of sensationalism, nor to intimate that WHO is overreacting (I don’t think they are); my purpose is to answer the question, what makes an illness an “occupational illness” and thus compensable under workers’ compensation? More specifically, how does or might workers’ compensation respond to the Coronavirus?

Two tests must be satisfied before any illness or disease, including the Coronavirus, qualifies as occupational and thus compensable under workers’ compensation:

  1. The illness or disease must be “occupational,” meaning that it arose out of and was in the course and scope of the employment; and
  2. The illness or disease must arise out of or be caused by conditions “peculiar” to the work.

Whether an illness arises out of and in the course and scope of employment is a function of the employee’s activities. The simplest test toward determining whether an injury “arises out of and in the course and scope of employment” is to ask: Was the employee benefiting the employer when exposed to the illness or disease? Be warned, this “test” is subject to the interpretations and intricacies of various state laws.

Qualifying as “occupational” is the low hurdle. The higher hurdle is whether the illness or disease is “peculiar” to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers’ compensation. An illness or disease is “peculiar” to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee’s working conditions.

For example, black lung disease in the coal mining industry is a disease that is peculiar to the work of a miner. Coal miners are subject to prolonged exposure to higher-than-normal concentrations of coal dust leading to black lung disease. This makes the disease peculiar to the coal mining industry.

Another example of an exposure “peculiar” to the work is a healthcare worker contracting an infectious disease such as HIV or hepatitis as a result of contact with infected blood. The worker’s unusual or “peculiar” exposure to such diseases results in an illness that is occupational and compensable.

Qualifying an illness or disease as occupational and, more importantly, peculiar to the work (and thus compensable) may ultimately require industrial commission or court intervention to sort medical opinion from legal facts. No one “test” is available to declare an illness or disease compensable or non-compensable; each case is judged on its own merits and surrounding circumstances.

Concluding that an illness is occupational, peculiar to the work and ultimately compensable is not necessarily based on the disease in question but on the facts surrounding the worker’s illness. Factors investigated and considered by medical professionals and the court include:

  • The timing of the symptoms in relation to work: Do symptoms worsen at work and improve following prolonged absence from work (in the evening and on weekends);
  • Whether co-workers show or have experienced similar symptoms;
  • The commonality of such illness to workers in that particular industry;
  • An employee’s predisposition to the illness (an allergy or other medical issue); and
  • The worker’s personal habits and medical history. Patients in poor medical condition (overweight, smokers, unrelated heart disease, etc.) and/or with poor family medical histories may be more likely to contract a disease or illness than others in similar circumstances. Bad habits and poor medical history (and heredity) cloud the relationship between the occupation and the illness. For example, smokers may be ill-equipped to fight off the effects of illnesses to which others may have no problem being exposed.

What About Coronavirus?

Judged against the qualifying factors presented, does any disease or virus declared a pandemic create a true workers’ compensation exposures? Does the Coronavirus crate a workers’ compensation exposure? The short answer is, “not likely.” Other than the fact that the Coronavirus is currently garnering intense attention, in most cases it is no more occupational than the flu.

Unless!

Only if it is proven that the employee has an increased risk of contracting the virus due to the peculiarity of his or her job might the Coronavirus be considered occupational and thus compensable. Remember, compensability as an occupational illness requires something about the job that increases the risk of exposure and illness.

As intimated earlier, healthcare workers may be able to prove the necessary peculiarity – being face-to-face with sick people ALL day – to assert a compensable injury.

Which Policy Responds to Qualifying Occupation Illnesses and Diseases?

While the Coronavirus has a relatively short gestation period, other occupational illnesses and diseases often have long “gestation” periods. Employees may be exposed to the harmful condition for many years before the illness manifests. It is also possible that the employee doesn’t contract the disease until years after the exposure ends.

The workers’ compensation policy specifically states that the policy in effect at the employee’s last exposure responds to the illness — even if the employee is working for another employer or even retired at the time the disease manifests itself.

The Coronavirus Isn’t Special

Coronavirus may be a humankind exposure rather than one peculiar to most employments. Contracting the virus at work is not enough to trigger the assertion that it is a compensable occupational illness. To be occupational and compensable requires something peculiar about the work that increases the likelihood of getting sick. It is unlikely that both the “occupational” and “peculiar” thresholds can be satisfied to make most illnesses “compensable” for the vast majority of individuals; the same is true of the new Coronavirus.

 

https://www.insurancejournal.com/blogs/academy-journal/2020/02/19/558705.htm