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How to Prepare Now for Your Next Crisis Post-COVID

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As business leaders remain hyper-focused on navigating through the pandemic, few have sufficiently considered how to prepare for the next major crisis. There are many steps leaders can take, some of which include reassessing their risk management plans, constructing cohesive frameworks that proactively identify potential gaps, and identifying protocols and procedures to fill those gaps in preparation for future crises, no matter how big or small. 

Reflect and Optimize

Very often, companies have not taken the time to assess how they responded to previous crises because they are either too busy afterwards, or too happy to have survived with minimal consequences. But the pandemic has shown that this is a dangerous game to play. While we have seen that most organizations had some of the core elements of crisis management success—whether a crisis management plan and team, mass notification technology, risk and intel monitoring capabilities, or business continuity plans and teams—many had (and still have) not connected these parts into a successful framework. Moreover, they have not reflected on those plans to improve them and optimize their crisis and risk management approaches.

Businesses must evaluate their preparedness for and response to past crises and use lessons learned in those reviews to optimize their responses moving forward. Given COVID-19’s unexpectedly “long tail,” companies should review and reflect on their plans now, rather than wait months or years.

Create or Enhance Your Plan

While enhancing an old crisis plan or developing a new one will take work (and cost money) upfront, it is a process that will pay massive dividends in the long run. Once businesses have a concrete crisis management plan in place, have practiced the plan, and are prepared, the cost will realize itself both in terms of the monetary outlay and by mitigating potential risks that could prove highly detrimental to the business down the line. While different companies take varied approaches to crisis management planning, certain plan elements have proven their value during COVID-19 and likely will again during future crises. This is demonstrated in “the 3 S’s”: scenario analysis, stakeholder analysis, and standing media agenda.

  • Scenario analysis: Scenario analysis encourages companies to focus on the best, worst, and most-likely case scenarios when confronting a crisis and planning for various organizational responses. At the beginning of COVID-19, many companies saw the crisis as a “China problem,” and did not actively prepare for its potential global impact. Preparing in this way would have enabled them to have a broader, more proactive approach to crisis management, rather than getting caught in constant response mode, as many companies were. 
  • Stakeholder analysis: In times of crisis, businesses must quickly identify the key internal and external players that will be impacted and require critical attention. The companies that do so will be able to quickly identify their specific needs and/or interests and build their crisis responses around them. Not doing so often results in disorganized management of key stakeholders, exacerbating the impact of the crisis and/or causing additional work for the crisis team.  
  • Standing meeting agenda: Standing meeting agendas are crucial for helping to keep meetings on track, ensure discussions are impact-based and holistic, and guarantee key facets of the response are consistently revisited until resolved. Organizations that do not utilize standing meeting agendas often find their meetings to be frustrating, disorganized, and never-ending as conversations go around in circles.

Practice Responding to Crises

It would be easy to believe that you do not need to practice your crisis responses and exercise your plans after navigating a massive crisis like COVID-19, but that would be a mistake. Every crisis has its own unique characteristics, impacts, and challenges, and crisis exercising has proven to be one of the most effective means of preparing organizations and their leaders for navigating the next crisis or managing multiple, smaller crises at once. Just as with physical exercise, crisis exercising keeps organizations nimble and helps develop organizational muscle memory to ensure businesses and leaders are prepared for a real crisis.  

Do Not Forget Travel 

While most business leaders are thinking about bringing people back to the office, few have considered that many, ironically, are going to be looking for opportunities to leave it again—getting back on the road and visiting suppliers, customers, etc. So it would be short sighted for companies to only focus on policies and procedures around returning to the office, when they should start thinking about policies around returning to travel too. This will bring exponentially more challenging situations given the lack of consistency and (likely) inequity of vaccine distributions across the world, especially in developing nations where many employees may be traveling. Business leaders should be thinking about this now and planning for how to enable and support employee travel when it is safe to do so.

Take Risk Management and Monitoring Seriously

Risk management programs can no longer be developed with a “check-the-box” approach. As COVID-19 proves, high impact-low probability events are not only possible but probable, and so companies must take risk management and monitoring seriously. During this time, companies have started to build information and intelligence monitoring capabilities to help them digest the large volume and varied kinds of information they are receiving. This has included agreeing on scenarios and triggers that, when met, result in particular organizational action (e.g., reopening the office when case counts are at a certain level or enough people have received the vaccine). The last thing companies should do is stop monitoring when it seems as though the pandemic or any other crisis seems to be slowing or ending. In fact, organizations should not only maintain this monitoring but expand it to include other risk types identified during the crisis that could create another significant disruption down the line. This will allow the organization’s leaders to make data-based, proactive decisions rather than waiting until a crisis happens.

Crisis and business continuity planning has never been more important. The COVID-19 pandemic has dramatically shifted the way businesses operate and has created new problems that business leaders must solve. To effectively plan for the next crisis, leaders must prioritize these capabilities, creating a holistic framework that addresses various types of threats. Taking these steps now will better prepare organizations for the next major crisis, however unlikely and no matter the scope and scale.

Responding to Litigation Hold Notices

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The purpose of a litigation hold is to preserve relevant information when an organization reasonably believes this information can lead to an investigation or litigation. The information to be preserved can be documents, equipment and/or electronic information or materials that may be relevant to a lawsuit or an investigation, depending on your industry. If relevant documents or information are lost, altered or destroyed, the company could suffer serious legal consequences.

The spoliation of evidence is “the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.” The maximum penalty for destroying or concealing evidence is either six months in a county jail or a fine up to $1,000, or both. For example, spoliation can occur when documents are shredded, emails erased, physical evidence is sold, destroyed or hidden and otherwise rendered unavailable for trial. It is the company’s duty to take all reasonable steps to preserve potentially relevant information.

The risk professional’s role is vital—he or she may be aware of an incident that might give rise to a claim or suit, well before a suit is filed, sometimes even a year or more. For example, if you receive an incident report that a third-party vendor fell on your property, you would call security to see if there is video of the incident, and if so, secure a copy of that video. You would interview any witnesses, preferably on the day of the event while memories are fresh, and document the incident in their words. If the victim alleges that something caused the fall, then you should take photos of location and determine whether the pavement was wet or dry, there was debris in the aisle, what the weather conditions were, and other considerations. Once you complete the investigation, all documentation should be stored and secured.

If there is a claim that is either in a lawsuit or the company believes could later become a lawsuit, the clock starts ticking on litigation hold notices. In the United States, the law requires that companies comply with their duty to preserve evidence. Evidence is broad and can include an automobile involved in an accident; emails; a chair involved in a slip and fall; videos, voicemail, photographs or text messages; among others. The notice can involve official company files, personal files or non-official files. All information that may be relevant to the matter must be preserved.

Preserving potential evidence that the company believes may reasonably lead to a lawsuit or investigation takes a coordinated effort that can involve legal, risk management, IT, HR, compliance, engineering, security and any other department.

If you are an employee who may have information pertinent to investigation or lawsuit, you would be considered the custodian of this information and would have a legal obligation to preserve such evidence. As custodian, the legal department or possibly a third-party administrator would instruct you to preserve the evidence. The general procedure is that you would receive a notice on a matter that could be involved in an investigation or a lawsuit. You will be required to review, comply, sign and certify a document that states you agree to preserve information that would be related to the event. There may be a requirement to return signed document within a certain amount of time from receipt, and violation may result in disciplinary action that can include termination.

The evidence required may be very specific (such as video recorded on this date), or general (like all related emails), and may include a date range. Once identified, do not destroy, alter, modify or delete documents subject to the hold notice. When the lawsuit or investigation is completed you will receive a termination and release of this obligation. The evidence may be saved as part of the company record retention program.

Risk management can play an important role in this process by storing the hold notice in the claim file, periodically reminding custodians of their obligations, involving and sending new notices for new custodians that might have evidentiary material, and notifying custodians of termination of hold notices.

‘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.

Hurricane Laura Leaves Destruction—and Pandemic-Related Recovery Challenges

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Hurricane Laura made landfall in the United States at 1 a.m. on Thursday, hitting Louisiana and Texas as a Category 4 storm with maximum sustained winds of 150 miles per hour and what National Hurricane Center officials called “unsurvivable” storm surge. In such ferocious wind, thousands of homes and businesses were damaged or completely destroyed, hundreds of thousands were left without power and, as of Thursday evening, at least four people had been killed.

While forecasters initially expected the storm to lose intensity before reaching land, it rapidly intensified this week, becoming one of only 10 hurricanes to make landfall in the continental U.S. with winds over 150 mph since modern recordkeeping began in 1851. After windspeeds nearly doubled on Wednesday, officials in Texas and Louisiana ordered several hundred thousand people in the storm’s path to evacuate, but many were either unable to leave or chose not to. Increasingly severe storms in the area in recent years may have left some feeling prepared or resigned to ride out the storm.

Others faced difficulties related to the pandemic. As Risk Management recently reported, many experts have expressed concern that the COVID-19 pandemic could significantly complicate hurricane season this year, increasing the risk to individuals and businesses and making disaster recovery more difficult. Ahead of Laura, NPR reported that emergency shelters had a hard time safely accommodating evacuees without overcrowding and had to direct many to hotels. Pandemic-related job losses may have ruled that option out for some. Mayor Nic Hunter of Lake Charles, which was particularly devastated in the storm, told NPR that he “suspects the coronavirus pandemic and economic hardship are leading many people to take pause.” The outlet also reported that experts are concerned that mass evacuations from the hurricane could lead to new outbreaks in the region.

Now, the recovery process will undoubtedly be impacted by the pandemic as well.

“The global health crisis is going to have a major impact on recovery from any major storm, including Hurricane Laura—the stress of natural disaster becomes more intense when it unfolds against the backdrop of a highly contagious viral outbreak,” John Dickson, president and CEO of flood insurance provider Aon Edge, told Risk Management in the wake of the storm on Thursday.

For example, he said, “If you think back to hurricanes like Katrina (which hit about 15 years ago almost to date) and create a mental image, you see the community banding together to respond in close physical proximity. Similar images emerged from last year’s prolonged flooding along the Missouri River. In those and other events, assembly lines formed to fill and deploy sandbags—a task impossible to do six feet apart.”

Dickson noted that technology increasingly used by insurers (also known as risktech) would be more important than ever in responding to natural disasters this year as emergency response must be balanced with safe social distancing practices.

“Smart phones and basic technology can help homeowners achieve the recommended preparation steps and stay safe during a storm,” he advised. “For example, taking pictures and videos with date and time stamps could minimize the need for on-site inspections and physical proximity to claims adjusters.”

For insurance professionals, he noted, “The insurance industry is thinking through very tactical steps to ensure policies and procedures are in place to protect those who are on the frontlines when a hurricane hits. Drone technology offers the opportunity to take photos remotely, and computer models help better quantify risk and manage work forces.”

For more insight and actionable guidance on risk management for hurricanes and other natural catastrophes, including disaster preparedness, recovery and insurance, check out the following pieces from Risk Management:

Before Disaster Strikes: How to Prepare for Natural Catastrophes
How does an organization ensure it is prepared to minimize losses and recover quickly following a natural disaster? Long before a disaster strikes and property damage occurs, the best response plans begin with careful negotiation and placement of well-defined property coverage. Read more

Key Considerations for Disaster Planning
Meticulous disaster response planning has never been more critical. When developing a plan, it is important to involve key stakeholders and review every step that your business, your network and your vendors must take if a natural catastrophe impedes operations. A strong plan should address these key questions. Read more

Weathering Hurricane Season During the Pandemic
Pandemic-related social distancing guidelines and supply shortages could make it harder for business owners to protect their properties should a storm happen, making it even more important to have an action plan in place. These key considerations can help businesses owners mitigate potential storm risks amid COVID-19. Read more

Understanding Post-Storm Business Interruption Coverage
Whether in the impacted area or beyond, businesses suffering from supply chain disruptions after hurricanes and other storms should look to their property insurance policies for contingent business interruption coverage. Read more

Natural Disaster Planning During COVID-19
As the COVID-19 pandemic continues, government authorities and disaster-response entities are over-extended and may not be able to provide assistance as readily this year. It is more important than ever that companies make backup plans and assess the potential impact of shortfalls in their disaster response protocols. Read more

The Human Element of Disaster Recovery
Crisis and disaster recovery plans offer a critical advantage when catastrophe strikes, helping mitigate the impact on facilities, information systems and equipment. Just as important, however, is considering how a disaster can affect the company’s workforce. Read more

Ensuring Insurance Recovery After a Hurricane Loss
These seven tips can help policyholders resolve disaster insurance claims in the wake of hurricanes and other natural catastrophes. Read more