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Driver Safety Tips for Fourth of July Trips and Post-COVID Return to Work Commutes

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Historically, the Fourth of July holiday weekend has presented some of the most dangerous days for drivers in the United States. Indeed, it may be the country’s riskiest holiday of the year. This year, while many may be cancelling their holiday plans and staying home, others may be taking to the roads after months of little travel amid COVID-19 lockdowns.

Looking beyond the long weekend, many drivers are also getting back on the roads as businesses across the country return to work after COVID-19 closures and quarantines, either resuming their old commutes or driving for work.

“Stay-at-home orders resulted in less vehicle traffic but, incidentally, speeding and reckless driving increased dramatically as drivers took advantage of the empty streets,” said Kevin Quinn, vice president of claims and customer experience at Mercury Insurance. “This dangerous behavior puts lives at risk and can result in unnecessary collisions and fatalities. It’s especially dangerous as cities, counties and states reopen and more drivers begin returning to the roads. Drivers need to check themselves and be aware and respectful of the increasing number of vehicles surrounding them.”

He added, “Many drivers are also out of practice—aside from maybe some trips to the grocery store, their longer commute driving skills may be a bit rusty. It’s important to review the rules of the road before setting out on your trip to ensure your safety and that of others.”

As you and your employees get back behind the wheel, Quinn offered these 10 tips to help everyone stay safe over the long weekend and during the return-to-work period for businesses nationwide:

  1. Get reacquainted with your vehicle and driver settings. If your vehicle stayed in park for the majority of stay-at-home orders, it may require some maintenance. Check the oil level and tire pressure to ensure they haven’t decreased before driving. Make sure your seat and mirrors are still positioned optimally for an unobstructed view of the road ahead and remove as many blind spots as possible.
  2. Have a collision avoidance plan. Plan ahead for potential driving emergencies—such as a dog running into the street, another vehicle running a stop sign or a sudden obstruction on the highway—and create a strategy for how to react. Having a collision avoidance plan helps to make you a safer driver and protects motorists around you.
  3. Plan travel time accordingly. If you need to be at the office or an appointment by a specific time, be sure to allow yourself enough time to arrive at your destination without rushing. Account for potential delays like traffic congestion and don’t wait until the last minute to leave your home. Speeding and weaving in and out of traffic lanes to get where you need to be is dangerous and inconsiderate of other drivers.
  4. Remove distractions. According to the National Highway Traffic Safety Administration, most crashes are the result of distracted drivers. Distractions such as using or manipulating your phone, noisy or overly active passengers, eating and multi-tasking will all result in unsafe driving conditions. Reduce or remove these types of distractions while on the road so you can focus on keeping yourself and your passengers safe while driving.
  5. Be aware of other drivers. Driving safety isn’t just about your behavior, but also depends on those around you. Don’t assume they’re being attentive—they may be distracted and not see the stop sign or traffic light ahead of them. Use caution when entering intersections, changing lanes, turning and entering and exiting parking spots.
  6. Remain cognizant of speed. Speed limits are set for a reason, so don’t break them. Driving under the speed limit can be dangerous for others on the road. If your car won’t accelerate to the posted limit, turn on your flashers and safely make your way to the side of the road for service.
  7. Maintain proper following distance. Rear-ending makes up a substantial portion of total injuries sustained in collisions. Following too closely behind a car hinders your ability to come to a full stop on time and it also limits your sight-lines. The rule of thumb is putting at least three seconds of space in between your vehicle and the car in front of you. Use a fixed object—such as a pole or overpass—and count the seconds between when the car in front of you passes it and when you pass it to determine the appropriate following distance.
  8. Stay actively engaged in the task of driving. Most modern vehicles are equipped with advanced driver assistance systems—like lane departure warning and active emergency braking technology—to help drivers avoid collisions, but this technology isn’t a substitute for proper and safe driving practices. Keep your eyes focused on the road ahead, and check mirrors, over your shoulder and use your signal when turning or changing lanes.
  9. Remember to yield to pedestrians. Walkers and joggers may have grown accustomed to fewer cars on the streets, thus, may forget to look both ways before crossing. They also might not be paying the utmost attention to their surroundings, particularly if they’re looking at their phones, but pedestrians do have the right of way, even if jaywalking. Use caution when driving on roads with high foot traffic.
  10. Obey posted traffic signs. Many cities have been repairing roads during the stay-at-home period, when fewer people were driving. Keep an eye out for any temporary traffic signs surrounding transit construction.

OSHA Revises Stance on COVID-19 Record-Keeping and Enforcement

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The Occupational Safety and Health Administration (OSHA) recently issued two enforcement memos regarding COVID-19. The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports. The changes in these revisions include:

Record-Keeping and Reporting

OSHA’s position for months has been that cases of COVID-19 are subject to record-keeping and reporting requirements if they are work-related. On May 26, 2020, OSHA’s new memorandum superseded the previous April 10, 2020 memorandum on the subject of work-relatedness.

The April 10 memorandum essentially provided most employers latitude to assume that cases of COVID-19 were not work-related, absent evidence to the contrary. The May 19 memorandum revises OSHA’s position, requiring employers to investigate COVID-19 cases more heavily before concluding whether they are work-related.

The primary thrust of the agency’s revised position is that OSHA enforcement officers should consider three primary factors when evaluating whether an employer’s determination of work-relatedness was reasonable:

  • The reasonableness of the employer’s investigation into work-relatedness;
  • The evidence available to the employer; and
  • The evidence that a COVID-19 illness was contracted at work.

Regarding the first, OSHA stated that it is sufficient in most circumstances for an employer, when it learns of an employee’s COVID-19 illness, to (1) ask the employee how he or she believes they contracted COVID-19; (2) while respecting employee privacy, discuss with the employee his or her work and out-of-work activities that may have led to the COVID-19 illness, and (3) review the employee’s work environment for potential COVID-19 exposure.

Employee privacy rights are a potential trap for unwary employers when inquiring about exposure outside of the workplace. Such discussions could implicate a variety of employment laws, including state-specific laws.

Regarding the second factor, OSHA directed employers to consider the evidence “reasonably available” at the time they makes their work-relatedness determination. If employers later learn more information related to an employee’s COVID-19 illness, then employers shall also consider that information.

OSHA elaborated on the third factor by listing certain types of evidence that weigh in favor of or against work-relatedness. For example, OSHA stated that COVID-19 illnesses are likely work-related when several cases develop among employees who work closely together and there is no alternative explanation. OSHA also stated that an employee’s COVID-19 illness is likely work-related if it was contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

OSHA justified its revised position on work-relatedness by stating that the nature of COVID-19 and the ubiquity of community spread frequently make it difficult to accurately determine whether a COVID-19 illness is work-related, especially when employees have experienced potential exposure both in and out of the workplace. OSHA might also have been motivated by some organizations calling for it to take a more aggressive response to COVID-19.

Complaints, Referrals and Illness Reports

The second memo, also issued on May 19, 2020, was related to complaints, referrals, and severe illness reports. Specifically, in geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to its normal pre-COVID-19 methods for prioritizing reported events for inspections. 

OSHA will continue to prioritize cases of COVID-19 to some degree, but will increasingly conduct these efforts by phone or other remote methods. In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission, OSHA will continue to heavily prioritize COVID-19, including conducting on-site inspections, especially in high-risk workplaces.

Action Items and Final Takeaways

OSHA’s enforcement approaches regarding the COVID-19 pandemic continue to evolve. The agency will likely continue to closely monitor employers’ compliance with COVID-19-related requirements even after states and localities lift stay-at-home orders.

Professionals with questions on how OSHA’s recent enforcement policies affect a business or organization should consider consulting with legal counsel. Also, OSHA distributes by email an informative twice-monthly newsletter called “QuickTakes,” open for subscription. OSHA’s regulations on injury and illness recordkeeping and reporting, found at 29 C.F.R. Part 1904, also include helpful questions and answers about these topics.

Finally, employers should bear in mind that the negative consequences of choosing not to comply with OSHA’s record-keeping and reporting requirements often outweigh the potential negative consequences of bringing injuries and illnesses to OSHA’s attention.

Preventing Paycheck Protection Program Loan Scams

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The COVID-19 pandemic and subsequent shutdowns have meant perilous times for small businesses across the country, with many shutting down temporarily or even permanently. As part of the U.S. government’s efforts to forestall bankruptcies and layoffs, Congress allocated hundreds of billions of dollars for the Paycheck Protection Program (PPP). Small businesses can apply for loans from the U.S. Small Business Association (SBA), which the SBA will forgive if the receiving business meets certain criteria, like “if all of the company’s employees are kept on the payroll for eight weeks and the money from the loan is used to pay for rent, mortgage interest, utilities or payroll.”

The program has helped many businesses, but also left many stranded and desperate when they could not qualify for the loans. According to the Wall Street Journal, as of this week, the government has disbursed “4.6 million loans worth more than $513 billion.” But some businesses were forced to return the funds when they discovered they could not open soon enough to meet the eight-week deadline, and some did not even bother applying because they did not meet the criteria. The program has also faced criticism for not providing enough funds, and when larger and/or publicly traded companies (like restaurant chain Ruth’s Chris) received loans.

As with many other government programs that award payouts and may have confusing or labyrinthine application and approval processes (such as Social Security payments or tax refunds), scammers have targeted desperate businesses trying to access PPP funds. Online identity verification service Social Catfish recently published guidelines for avoiding PPP-related scams that small businesses are facing, including phishing and robocall scams.

As Risk Management recently reported, phishing scams—in which criminals use fraudulent emails to trick users into clicking malicious links or divulging sensitive personal information—have proliferated since the start of the COVID-19 pandemic, often specifically targeting pandemic-related concerns. According to Social Catfish, online scammers have been using emails posing as the SBA inviting the recipient to apply for a PPP loan, then installing malware or stealing any information provided. With this information, scammers can then pose as a business to apply for loans or steal funds.

Scammers may also try to contact businesses by phone, either in person or by robocall, asking for confidential information or demanding a fee for their PPP application, even promising faster processing after the payment. Similar to the IRS, the SBA does not call PPP applicants for information, and there are no fees associated with PPP applications. Businesses applying for PPP loans may also encounter fake companies claiming that they facilitate applications, which scammers then use to steal the confidential information victims provide.

 To avoid being scammed, Social Catfish recommended that businesses interested in applying for PPP loans do their due diligence by following the steps below:

  • Don’t pay for a PPP Loan application. The SBA doesn’t require payment to fill out and submit a PPP Loan application. If someone is charging you to fill out an application, chances are its a scam.
  • Don’t give your information in response to any suspicious email, text, or phone call. The SBA will not email you out of the blue to fill out a PPP Loan application. If someone is emailing you out of the blue to fill out an application and to give them your information, chances are they are trying to scam you.
  • Verify the lender before applying for the loan. Only lenders approved by the SBA can administer PPP Loans. To find out if the lender you are applying with is approved to distribute PPP Loans, click here.
  • Don’t click on links in emails. The links in the emails are often filled with viruses and malware that will infect your computer and steal your personal information. They also spoof the application so that you’ll have to give out your personal or business’ confidential information.
  • Don’t reply back to any text or email you don’t know. Replying back to them with your personal or company’s confidential information may lead to you getting scammed. The SBA will not email you encouraging you to apply for the loan, you would have to look for the loan yourself.

Using Captives to Insure Against Black Swan Events

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Until recently, a global pandemic was, in most people’s minds, little more than a compelling plot to blockbuster films and apocalyptic science-fiction stories. A disease drastically changing the way of life and business operations for people across the globe and inciting wide-spread fear, quarantines and stay-at-home regulations was unthinkable for most beyond the “prepper” community. Now, though, after weeks of lives overturned, hindsight is 20/20 (pun intended). Many business owners and executive teams now agree the threat was obvious. A black swan.

As popularized by finance professor and Wall Street trader Nassim Nicholas Taleb in relation to financial markets, the term “black swan” refers to a rare or low-probability event that deviates from what is normally expected but poses critical threat. The 2008 financial crisis, the 2001 Fukushima nuclear disaster, the 9/11 terrorist attack and the dot-com crash of 2000 are all considered black swan events. We can never know with specificity which particular black swan will come, but we can know with certainty that one eventually will. And, due to their severe consequences, we should therefore consider how to make sure our lives and businesses will be robust against them. 

Insurance for Black Swans

Third-party commercial insurance policies often include business interruption coverage. Business interruption insurance protects against losses sustained due to periods of suspended operation. With COVID-19, many businesses considered non-essential have been forced to close and numerous businesses that are still hanging on have experienced challenges to their revenue streams as a result of coronavirus restrictions. This is where this form of insurance comes into play. However, pandemics are not the only black swans that business interruption insurance would cover. It could also cover losses from unexpected events like natural disasters, cybersecurity attacks, terrorist attacks or fallout from climate change. Also, even if a business’s insurance policy does not cover pandemic disease through business interruption, it is possible that other policies might be triggered due to the chain reaction caused by the black swan, such as:

  • Supply Chain Interruption
  • Loss of Key Customer
  • Subcontractor Default
  • Property (e.g., loss of access to business premises due to quarantines)
  • Catastrophic Risks

However, third-party commercial insurance policies are not always enough. These policies are often riddled with exclusions that prevent coverage during the time it is most needed and can lead to a claim being denied. Commercial insurance for an asymmetrical threat like a black swan event can also be extremely costly or difficult to obtain. And in many cases, coverage is simply unavailable. For example, during the avian flu epidemic, many U.S. insurers added an exclusion to their policies, “Exclusion for Loss Due to Virus or Bacteria” (ISO form COP 01 40 07 06). Similarly, the insurance industry responded to SARS by adding exclusions to preclude coverage for losses triggered by business interruption.

Businesses need to review their insurance policies to identify gaps in coverage. Some may want to consider filling these gaps and strengthening their coverage by supplementing the third-party commercial insurance by pooling their risks in a captive insurance company.

Taking Black Swans Captive

A captive insurance company is a licensed insurance company that is usually owned by a related business or its owner. That company can then insure a wide variety of the related business’s risks—risks likely to be implicated in any black swan event such as supply chain interruption, loss of a key supplier or customer, subcontractor default, bankruptcy of certain counterparties, or losses from governmental actions like forced business suspension or quarantines.

Via reinsurance arrangements, the captive insurance company can then pool its risks with the risks of many unrelated business, usually including those in completely different industries. Some of those businesses and industries will no doubt be the beneficiaries of most any given black swan event.  

For example, some physician practices that specialize in elective surgeries have seen their revenues cut by half overnight due to states prohibiting such procedures in order to preserve medical equipment for use by those fighting COVID-19 on the front lines. But other medical practices have seen their revenues skyrocket as COVID-19 has spiked demand for their services. By risk pooling via a captive insurance company, the claims of those practices that are suffering will therefore be paid in part by those that are prospering. This loss-sharing will allow the former to stay in business and continue covering their costs (such as rent and salaries), thereby making the entire economy more robust. And next time around, the proverbial shoes may just be on the other feet. In some cases captive insurance companies may also receive very favorable tax treatment that also provides additional liquidity during times of crisis. 

Preparing for the Next Black Swan Event

The coronavirus has heightened awareness of the need for both risk management and strategic planning to prevent future crises from negatively impacting company financials and viability. Sadly, not all businesses will remain healthy and viable through this pandemic, and it is too late for those impacted by the coronavirus to insure those particular losses. But business owners and executives can take immediate steps now to prepare for the next black swan, whatever it may be and whenever it may come.