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COVID-19 Vaccines: Should You Mandate, Motivate or Educate Employees?

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For the past year, employers have grappled with unprecedented workplace safety and human resources challenges, forced to address safety measures that were unfamiliar for many industries. Employees have become accustomed to daily health screening and masks, and human resources has added COVID safety training and enforcement to its job duties. As vaccines are becoming more prevalent, employers have to now decide whether they should vaccinate their workforces. Making this decision can seem daunting and the applicable employment laws can seem overwhelming. However, there are some baseline considerations that may help.

As a threshold matter, employers are obligated under the OSHA General Duty Clause to provide a safe working environment to their employees. At the direction of President Joe Biden, OSHA released new comprehensive guidance regarding COVID workplace safety, including a 16-point list of essential components of a workplace safety program. OSHA recommended that employers make the vaccine available to eligible employees at no cost, and made clear that employers must continue to enforce COVID safety protocols regardless of an employee’s vaccination status “because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

Employers now must determine whether they will mandate, motivate, or educate employees to receive the vaccine. They will first have to determine whether the vaccine will provide a safer working environment. While it seems clear that the vaccine will minimize or eliminate the vaccinated individual’s COVID symptoms, it remains unclear whether a vaccinated worker may spread the virus to others. Therefore, a vaccinated workforce may still be a contagious one.   

Businesses that serve in-person customers may benefit from mandating the vaccine. A local restaurant or retailer may be able to advertise that its staff is vaccinated encouraging patrons to return. While a mandatory vaccine program may be complex, the benefit of returning customers may outweigh the pain of a program. Conversely, in an organization where most employees have remained remote and business has continued at normal levels, the complexity of a mandatory program may not be worth it. In the latter scenario, it may be better to implement a voluntary program, which is easier to administer and has less compliance complexity. Employers will have to weigh the return on investment for each approach.

Employers will also have to determine their appetite for risk. Many initially lean toward a mandatory vaccine approach in an effort to protect employees from becoming seriously ill. However, even mandatory programs pose liability risks for employers. Essentially, there are two schools of thought regarding mandatory vaccine programs:

  1. A vaccinated workforce is essential to safety. A vaccinated workforce will reduce community spread and bring the workforce closer to herd immunity. The fewer employees that become symptomatic or sick, the sooner we may reduce COVID-19’s spread. Likewise, it would be negligent, or a violation of the employer’s General Duty obligations, to not mandate eligible employees to receive the vaccine.
  2. The vaccine is too new to mandate. On the other hand, some believe that it would be negligent, or a violation of an employer’s General Duty to require employees to receive the vaccine, noting that the vaccine is merely under emergency authorization. Consequently, mandating that eligible employees receive the vaccine would create employer liability for any possible harm the vaccine could cause to employees.  

It is also important to note that mandatory programs will likely trigger workers compensation coverage for any medical services and/or lost time associated with employee reactions to the vaccine. Workers compensation coverage is not always a bad thing. Employers should remember that the workers compensation exclusive remedy provision protects employers from negligence and tort claims (but not gross negligence). 

Employers should also consider the practical and operational complexities associated with a vaccination program. Employers who implement a mandatory program must be prepared to enforce the rules. They may be faced with difficult decisions regarding candidates and eligible employees who refuse to receive the vaccine (without any legal protections). Can the employer continue to recruit and retain talent under a mandatory program?

Regardless of where an employer lands on the vaccine program spectrum, they must take their employee complaints and concerns seriously. Likewise, employers must not take adverse action against a complaining employee. Employee OSHA whistleblower cases have reached unprecedented numbers. As of February 5, there have been 4,738 COVID OSHA whistleblower complaints filed in the previous 12-months. Before 2020 (and COVID-19), the largest number of complaints received by OSHA in a 12-month period was 3,355 in 2016.

The good news, if there is any, is that employers that provide safe working environments, are open to employee concerns, and communicate with workers are already taking positive and proactive steps to avoiding liability and litigation. The following best practices may be helpful: 

  • Review your COVID safety program to ensure it comports with OSHA’s 16-point COVID prevention program guidance, and continue to review and update as guidance and regulations change.
  • Provide managers and employees regular safety training, and provide managers with training to enforce safety programs, hold employees accountable, and document all safety incidents and violations.
  • Stay up to date with regulations. OSHA has updated emergency temporary standards, and local and state laws continue to change rapidly.
  • Update anti-retaliation policies to include COVID safety protocols. Also consider a whistleblower hotline and ensure that managers are trained and understand how to take seriously and address employee concerns and complaints.
  • Be sure your workforce has the most current information regarding COVID-19, its symptoms and transmission, and the vaccine. Also be sure to provide all communication in multiple languages for a multilingual workforce.

Ultimately, COVID workplace safety is at the core of any employer’s operations. Whether an employer mandates, motivates or educates its employees to receive the vaccine, they must continue to evolve and enforce their COVID safety protocols.

8 Steps to Create Strong Disaster Management Plans

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A core responsibility of any risk professional is planning for any possible disasters your business might face. These could be man-made, such as a data breach or accidents involving machinery, or natural, like a tornado or flood.

Disasters and crises affect different organizations in different ways—one company might consider something a catastrophe, while another may not even notice a change in its workflow. It is important to look at your own business operations and evaluate what you would consider a crisis. Generally, business crises fall into one of three categories:

  1. A danger to the physical safety of employees or customers
  2. Loss of income or means of making income
  3. Events or people negatively affecting your business reputation

In many cases, the crisis may fall into more than one of these categories. An accident in the workplace that is hazardous to employees can impact the company’s income because the factory has to shut down. This can also negatively affect the company’s reputation if it turns out that the company did not provide a safe working environment.

With even the best risk management programs, no organization can avoid all disasters completely. Risk mitigation often comes down to crafting the best plans possible for the moment disaster inevitably strikes. These eight steps can help risk professionals develop strong crisis and disaster response plans:

1. Define The Types of Crises You Could Face: There is not a one-size-fits-all approach to a crisis management plan. Working out what is likely to affect your business specifically can relate to your geography—areas that get hit by severe storms or earthquakes must include those potential disasters, and what knock-on effects they may cause. For example, storms may cause flooding, loss of power, or blocked roads that make it difficult to reach your premises. The type of crisis can also be specific to your industry. Employees in a manufacturing facility are likely at greater risk in a physical disaster than those working in a tax consultancy, for example. Security should also be a consideration. Is your business likely to get robbed of cash or equipment? Do you have high-profile proprietary information that makes you more likely to be the victims of cybercrime?

2. Triggering the Plan: Including levels of urgency in your plan will help people responding to the crisis pinpoint how significant the event is, and how much of the plan must be put into action. A step-by-step approach for specific scenarios can be helpful and cover dealing with man-made and natural disasters in different ways. The risk for each will be unique to the situation and knowing when and how to trigger a response is key. The plan should include how and when to escalate the response should the crisis worsen, as well as how to identify when the crisis has passed. It can be helpful to use red, yellow and green system to indicate severity and urgency, and this classification approach is easy to adapt to any scenario.

3. The Base of Operations Location: Accidents or natural disasters may cause your usual place of business to close temporarily or permanently. In your plan, designate a backup command center in an alternate location for dealing with the crisis until you can get back to work. This location can be your company’s operations hub, a point for gathering after a crisis, or where you know your sensitive and important data backs up. If a natural disaster has made travel dangerous or roads impossible to navigate, you will also need a virtual base of operations—some possibilities include message boards, chat apps or email. With so many employees working remotely because of COVID-19, this may be easier to implement now.

4. The Chain of Command: Ensuring a clear chain of command so that there is no arguing or confusion when people and the business are at risk. Wherever possible, appoint a back-up for each person in charge so if someone cannot perform their duty, it falls to the next in line.

5. Internal and External Communication: When a crisis compromises an office or business, communication can become tricky. Have a clear set of rules for how you get information to and from your employees, what information you must and must not share with those outside of the company, and how to achieve that. This part of your crisis management plan can save lives and stop rumors from spreading.

6. Necessary Resources: Though this will depend on the nature of the business, consider first aid and safety equipment if you are likely to have injuries or get cut off because of poor weather. Also, think about alternate communication methods if mobile phone towers go down or the electricity gets cut, as well as access to your sensitive data, such as employee contracts and supplier agreements.Include all necessary resources you would need to operate and highlight any alternate replacements. For example, if a storm knocks out your power, you may have a generator.

7. Training: It is no good putting a crisis management plan together and not giving the relevant people the training they need to execute it. For example, the people you name as first aid providers or unit leaders need to know what is expected of them and undergo the necessary training. If you have safety equipment on your premises, like fire extinguishers or emergency release valves for machinery, you need to educate all stakeholders how these work.

8. Testing the Plan: Finally, test that your plan actually works. Review it with staff and conduct safety drills regularly—every two months at least. Look for any weak points or flaws in the plan before an actual crisis.While it may not be possible to anticipate everything a disaster brings, you can set up several response plans and test each one individually. These plans can tie in with your standard safety drills, or stand alone, depending on the nature of the event anticipated.

A crisis management plan is integral to every business, no matter its size, scope, or sector. By preparing for various potential disasters, you can take action when needed without putting your organization, employees, or yourself at unnecessary risk. 

PAID Act Becomes Law, Fixing Medicare Secondary Payer Flaw

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On December 11, the Provide Accurate Information Directly (PAID) Act was signed into law as a part of the funding bill to keep the government running. A top priority of RIMS Advocacy since it was introduced in 2019, the PAID Act will fix a current flaw in Medicare Secondary Payer (MSP) compliance. Specifically, the PAID Act amends 42 U.S.C. § 1395y(b)(8)(G) to require that the Centers for Medicare and Medicaid Services (CMS) expand its Section 111 Query Process to identify whether a claimant is currently entitled to, or during the preceding 3-year period has been entitled to, Medicare Part C (Medicare Advantage) and/or Medicare Part D (prescription drug) benefits. If so, CMS is then required to provide the names and addresses of any such Medicare plans through the Section 111 Query Process. Included in the bill is a one-year implementation provision that requires the fix to go live by December 11, 2021.

The bipartisan bill was introduced in 2019 by Republican Senator Tim Scott of South Carolina and Democratic Congressman Ron Kind of Missouri in the House of Representatives. “Today, the PAID Act has taken a pivotal step closer to becoming law, filling in Medicare-related potholes that have cost seniors, Main Street job creators, and the American taxpayer millions of dollars over the years,” Sen. Scott said when the bill passed. “Decades-old regulations and bureaucratic red tape have caused confusion and avoidable litigation in the MSP for far too long, and by eliminating those problems we can help seniors and families across the country.”

The fix in the PAID Act will essentially settle the increased number of lawsuits that have been filed by Medicare Advantage Plans asserting recovery rights against insurers, including claims for “double damages” under Medicare’s private cause of action provision. If CMS provides settling parties with the name and identity of the plan and the dates of coverage, they can better resolve and repay MSP liabilities associated with settlements, judgments or awards. With these changes, there will be a more efficient solution for beneficiaries, taxpayers and employers.

Proponents of the PAID Act assert, in part, that this legislation will now help insurers better identify and address potential Part C and/or Part D recovery claims by allowing them to obtain entitlement and plan information in a more programmatic manner using Section 111’s Query Process.

Currently, there is no such centralized process or system for insurers to obtain this information. When an applicable plan submits the required query process data elements to CMS, if the queried individual is identified as a Medicare beneficiary, the query response only confirms that they are enrolled in Medicare. It does not provide any information as to the “type” of Medicare program in which the individual is enrolled. The PAID Act will change this to better identify whether a claimant is enrolled in Medicare Advantage and/or Part D.

The text of the PAID Act states that CMS must provide the following information to the applicable plan through the Section 111 Query Process:

    (I) whether a claimant subject to the query is, or during the preceding 3-year period has been, entitled to benefits under the program under this title on any basis; and (II) to the extent applicable, the plan name and address of any Medicare Advantage plan under part C and any prescription drug plan under part D in which the claimant is enrolled or has been enrolled during such period.

With the PAID Act now law, RIMS will monitor the CMS implementation process and provide feedback as needed. RIMS worked closely with the Medicare Advocacy Recovery Coalition (MARC) to support their efforts to get this bill passed. Check out their infographic on the Medicare issue the PAID Act should fix:

‘Take-Home COVID-19’ Claims: Preparing for a Second Wave of Coronavirus Litigation

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The Spanish Influenza epidemic came in three waves, with the first hitting in March 1918, the second in the fall and the third in the winter of 1919. The U.S. Centers for Disease Control and Prevention considers the second wave to have been the most deadly. In the United States, well over half of the epidemic’s death toll of 675,000 occurred during the second wave. It is no surprise then that public health experts were already warning of the possibility of a second wave of the coronavirus pandemic when the world was just beginning to acknowledge that the first wave was upon it in February.

Personal injury mass litigation also comes in waves. Consider asbestos: In the first wave, individuals who worked directly with asbestos filed workers compensation claims. Workers exposed to asbestos in products filed products liability suits during the second wave. A third wave included “take-home asbestos” claims in which workers’ children and spouses sued for illnesses caused by exposure to asbestos fibers taken home from work. A fourth wave is now underway with the alleged asbestos contamination of consumer talc products.

The first wave of personal injury coronavirus litigation emerged in early March when a married couple sued Princess Cruise Lines for gross negligence for placing “…profits over the safety of its passengers, crew, and the general public in continuing to operate business as usual.” Many similar individual and class action lawsuits have followed. According to an analysis by the Miami Herald, some 3,600 cruise line passengers have contracted COVID-19 and more than 100 have died. 

The situation in nursing homes is far worse. Nursing home residents account for an estimated 40% of U.S. coronavirus deaths thus far. Predictably, wrongful death suits filed by the family members of nursing home residents are surging, even as some states move to shield nursing home operators from liability. Personal injury lawsuits have also been filed against hospitals, meatpackers, restaurants, grocery stores and warehousing operations.

However, as the first wave of the coronavirus pandemic subsides, personal injury litigation may subside along with it. But what if the pandemic has a second wave? Although there is a great deal of uncertainty, public health experts now believe that there is no inherent seasonality to COVID-19 itself, but they remain deeply concerned that a combination of complacency and greater indoor activity could lead to a second wave of infections in the coming months.

What would a second wave of coronavirus personal injury litigation look like? One possibility that modelers at Praedicat are considering is a wave of “take-home COVID-19” litigation arising from occupational infection, coupled with high rates of intra-family transmission. Praedicat modelers estimate that 7-9% of COVID-19 deaths in the first wave have been family members of workers in essential industries who acquired coronavirus at work. With widespread testing and improved contact tracing, take-home transmission could be relatively easy to demonstrate during a second wave. The first take-home COVID-19 lawsuits were filed in August against an electrical supply company and a meatpacking facility, and the precursors to these complaints are present in earlier lawsuits filed against Amazon and McDonald’s.

Many public health officials believe that it is entirely within our power to keep a second wave of the virus from forming while we wait for a vaccine to be developed and deployed. A unified and steadfast public health campaign is critical if we are to avoid a second wave, individual companies working to limit transmission among their workers and customers is as well. First and foremost, this means closely adhering to federal, state, and local guidelines and industry best practices regarding disinfection, screening and testing, social distancing, and the use of masks and other personal protective equipment. Employers might also work to raise awareness of take-home exposure and the risk to vulnerable older family members or those with pre-existing conditions like diabetes that have been shown to elevate the risk of life-threatening complications associated with COVID-19.  Depending on the circumstances, maintaining social distance at home may be just as critical as maintaining social distance at work.

While a second wave of the pandemic may be unlikely, some level of infection, illness, and litigation is sure to be with us until there is a vaccine. The best protection against liability is making the safety of workers and customers paramount. But risk managers need to prepare for the worst and should also be reviewing the availability of coverage for employment related coronavirus claims, including take-home exposure. The employers liability exclusion under a general liability policy, for example, might exclude claims made by the family members of workers.