Market Update: Sexual Misconduct Liability in Healthcare Organizations

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

Rancho Mesa’s insurance brokers specializing in healthcare, education and non-profit organizations continue to navigate the hardening insurance marketplace, characterized by tighter underwriting guidelines, reduced limits of liability, increased deductibles, and higher policy premiums.

One of the sectors most impacted by the hardening market is healthcare and its ability to attain adequate insurance protection, specifically sexual misconduct liability insurance. Continued claim activity, social inflation, third-party litigation financing, and the increased cost of litigation all contribute to the hardening market conditions.

Consider the following data points in order to understand why the market is hardening. Several states have recently removed barriers to reporting abuse. Only five states maintain a criminal statute of limitations on claims of abuse. Nineteen states have eliminated statutes of limitations on civil claims. And, 30 states have enacted laws allowing victims more flexibility to revive claims of sexual abuse.

Additionally, according to the Institute for Legal Reform, from 2016 to 2020 the tort system’s direct economic costs grew 6% every year, exceeding both the inflation rate and GDP. That means more and more cases are litigated each year.

Not only are the number of cases increasing, but a 2023 report titled “Medical Malpractice Claims-Made Social Inflation and Loss Development Report” indicates that claims exceeding $1,000,000 continue to grow in frequency. So, the number of claims are increasing as the cost of claims are increasing.

An increase in third-party litigation financing, the practice of investors funding lawsuits in exchange for a portion of the settlement and return on the investment, can discourage prompt and reasonable settlements. This practice also reduces an attorney’s accountability to good faith standards and produces more lawsuits.

Impact to Sexual Misconduct Coverage and Healthcare Providers

Insurance companies are now reducing their financial risk for abuse exposures. This means medical professional liability underwriters may need additional underwriting information to quote limits in excess of $100,000. Additional underwriting measures may include issuing non-renewals, considering jurisdictional challenges, careful consideration of policies covering young patients, excluding all trafficking allegations, and adding a per victim or perpetrator deductible.

Risk Management Strategies for Healthcare Providers

Healthcare organizations can help mitigate some of the risk by:

• Using chaperones to reassure patients of a procedure’s professional nature. The chaperone provides a witness to support the practitioner’s actions.

• Performing examinations for a minor in the presence of a parent, guardian, or chaperone.

• Educating the patient about the exam and its necessity prior to the patient’s appointment.

• Documenting the exam’s medical necessity, the education provided to the patient, and the chaperone’s identity.

• Maintaining boundaries by establishing proper practitioner-patient relationships.

• Educating staff on proper patient interactions, professional boundaries and reporting of misconduct.

• Ensuring familiarity with your state’s reporting obligations related to sexual misconduct and include the requirements in your policies and procedures.

The legal environment and claim trends add financial exposure for both healthcare providers and insurance companies. Rancho Mesa will continue to monitor these trends to better educate and advocate for clients. Please contact me at (619) 937-0175 or sbrown@ranchomesa.com to discuss possible insurance solutions.

Don’t Wait Until It’s Too Late: Notify Your Insurer of a Claim Right Away

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

Rancho Mesa’s commercial clients purchase insurance to transfer financial risk to a third party and protect their business against claims of liability. These clients rightfully expect their respective insurers to fulfill the obligation found in black and white on the Insurance Service Office (ISO) general liability form that reads “We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.” So, what must a policyholder do to ensure this obligation is fulfilled?

Most importantly, following a known event, policyholders should not wait until served a lawsuit. Per the policy conditions, the policyholder must notify the insurer “as soon as practicable” of an “occurrence or an offense” which may result in a claim. Failure to do so can result in a breach of duty and forfeiture of coverage for that claim.

When reviewing policy coverage and terms in proposal meetings with their broker, clients often voice concerns about what types of occurrence require notice, how a notice to an insurer will impact future coverage and premiums, and how quickly is “as soon as practicable.”

Per the ISO general liability form, “occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

Various court cases and legal precedent do not provide a clear reporting timeline. It is safe to say policyholders do not want to find out how late is too late to report a claim. Report the incident without delay.

Having some apprehension in reporting the incident due to potential rate increases is common and understandable, but should not come into play at the expense of triggering coverage. It is also true that most insurers do not weigh reported incidents or notice only items when underwriting the risk. In contrast, claims, or matters where a third party actually alleges the policyholder is responsible for damages, will have significance to the underwriter. When determining how or when to properly provide notice to the insurer, your Rancho Mesa service team can educate and advise on how best to proceed.

For more information on a policyholder’s obligation to report an incident or to ask questions about your current policy, please contact me at (619) 937-0175 or sbrown@ranchomesa.com.

Beyond Insurance: Employer Strategies to Prevent Wage and Hour Claims

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

It was June, 86 years ago, when Congress and President Franklin D. Roosevelt (FDR) signed into law the Fair Labor Standards Act of 1938 (FLSA). In the words of FDR, the FLSA ensured “a fair day’s pay for a fair day’s work.”

While the FLSA immediately raised wages for hundreds of thousands of workers and improved working conditions, it has also given rise to a specific type of costly allegation, wage and hour claims.

Wage and hour claims arise when non-salaried or non-exempt employees make a formal complaint stating they were unfairly compensated for work performed.

In 2021, about 19,000 California workers filed unpaid wage claims for a total of more than $330 million, according to Cal Matters.

Wage and Hour Liability Allegations include:

• Underpayment of overtime

• Miscalculation of wages

• Refusal to allow employee breaks

• Expecting off-the-clock work

• Not paying employees regularly

• Refusal to pay exempt employees for absences

• Not paying for time required to put on or remove protective gear or clothing

• Adhering to federal minimum pay guidelines when state guidelines warrant higher pay

Prevention is always the best line of defense against wage and hour claims. Beyond purchasing insurance, which will typically provide $100,000 to $200,000 of defense costs, employers can mitigate risk by:

• Assessing the risk within the company, starting with the State and Local Government Self-Assessment Tool available from the U.S. Department of Labor’s Wage and Hour Division.

• Review employee classification as to “exempt” and “non-exempt” status to ensure compliance with guidelines under the FLSA and applicable state laws.

• Consult with an attorney or consultant regarding job descriptions and how overtime is calculated.

• Review and confirm proper classification for independent contractors.

• Keep payroll records for all employees and establish a mechanism for tracking non-exempt employees’ hours.

• Review practices and procedures to ensure compliance with meal and rest periods as applicable to state law.

• Allow an outside HR firm to conduct an external audit of the employer’s wage and hour practices.

• Enacting policies that prohibit off-the-clock work

Navigating employment law and the FLSA will help employers earn good favor among workers and help to avoid costly wage and hour lawsuits. Understanding common wage and hour allegations is a critical step in this process, but may not be enough.

If you have questions about how insurance policies may supplement your existing risk management plan, contact me at sbrown@ranchomesa.com or (619) 937-0175.

Litigation Funding Contributes to Higher Claim Amounts and Premiums

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

The first quarter of 2024 is in full swing and the insurance industry is already feeling the rising cost of insurance claims, often referred to as social inflation. Commonly discussed reasons for social inflation include socioeconomic, legal, and behavioral trends that produce costly lawsuits, according to research conducted by The Institutes. In addition to these familiar observations, a relatively new factor is now playing a role in large lawsuits: third-party litigation financing.

Litigation financing refers to the practice of private equity companies, hedge funds, and other investors taking a calculated risk to invest in lawsuits, according to The State Bar of California Standing Committee on Professional Responsibility and Conduct. The Insurance Information Institute estimates that $30 billion will be invested in litigation financing by 2028.

A simple example that typifies the arrangement is an investor paying for legal expenses in exchange for a portion of the settlement. A plaintiff may agree to this in hopes of increased damage awards.

The downsides to litigation financing include prolonged litigation, litigants receiving only a fraction of the award, litigants demanding higher settlements to cover the cost of the investments, and funding agreements impacting an attorney’s judgement when representing a client. The ultimate downside occurs when underwriters charge higher policy premiums or reduce appetite, making coverage very difficult or impossible to obtain.  

As the practice of third party litigation financing grows more common, legislation and regulation must catch up and may need to implement guidelines to better protect the interests of both policyholders and insurers.

If you have questions regarding social inflation and the impact on your policy premiums, please contact me at 619-937-0175 or sbrown@ranchomesa.com.

Protecting Non-Profit Operations with Business Interruption Insurance

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

A non-profit organization’s culture and positive impact often flows through its strategically placed locations in the communities it serves. These locations, whether they be offices, group homes, childcare centers, or shelters all further the mission and may drive revenue. The cost to the organization if one of these locations becomes inoperable due to a property damage claim can often add undue stress to the finances and leadership. This article will address how business interruption insurance (BII) can address these costs.

Following a covered property loss, a business or non-profit organization may suspend a location’s operations while repairs are made. This is known as the period of restoration. If such a suspension occurs, operations may be impacted in several ways.

 First, revenues may decline. Examples include a health clinic treating a reduced number of patients, a Boys & Girls Club losing members and monthly dues, or donations decrease.

Second, at the risk of losing staff, the organization may need to keep key employees on the payroll who cannot work their shifts during the repairs.

Third, the organization may continue to incur fixed costs at the location such as mortgage, rent, insurance, taxes, professional services and utilities.

Lastly, the non-profit may incur extra expenses to maintain operations or services at an alternative location. These extra expenses may include the cost of an extended stay hotel for clients or increased rent for an alternative worksite, and the cost of moving expenses.

The Challenge

How does a non-profit leader arrive at the most appropriate limit of insurance to indemnify the organization during a loss?

A Best Practice approach would involve the, use of a business interruption worksheet. This document will guide a policyholder and its insurance broker by asking for different line items to be insured.

These items will include:

• Annual net income

• Annual compensation for key people to be retained during the suspension of operations

• Annual employee benefits, pension costs and payroll taxes for key people

• Continuing fixed expenses

• Extra expense

The sum of these figures will provide the limit needed for a 12-month period of restoration. If 12 months does not seem long enough, then the policyholder and broker should discuss a realistic length of time operations would be suspended following severe property damage.

If operations may not resume in full capacity following completion of the repairs, then the policyholder and insurance broker should consider an extended period of restoration.  This may allow a business 180 to 365 days of extended coverage once the period of restoration ends.

Business interruption insurance coverage continues to confuse employers and many insurance brokers who do not have experience working with non-profit organizations. Rancho Mesa encourages decision makers to discuss this coverage and possible disaster plans at length with their insurance broker. It may help avoid a costly financial loss following property damage.

For more information or to ask questions about business interruption coverage, please contact me at sbrown@ranchomesa.com or (619) 937-0175.

First Four Steps to Take Immediately After a Data Breach

Author, Sam Brown, Account Executive, Rancho Mesa Insurance Services, Inc.

On Friday, July 14th Rancho Mesa hosted a popular workshop titled “Cyber Liability Explained: Hacking Trends for 2023” with presenter Beau Bechelli of Evolve MGA. His 60-minute presentation educated the audience on the cost of cyber attacks, the most common types of attacks, and practical ways to help reduce the threat of a breach.

This article will cover recommended steps an organization should take immediately following a data breach.

Call Insurance Agent

Immediately call the business’ insurance agent or the cyber insurance policy’s claim reporting line to report details of the incident.  

Secure Operations

According to the FTC.gov’s Data Breach Response Guide, an organization should first take steps to quickly secure its operations. This may require:

• New locks and access codes to physical areas

• Taking all affected equipment offline immediately

• Remove improperly posted information from the organization’s website

• Search for the organization’s exposed information on the web

FTC.gov also recommends interviewing individuals who discovered the breach and advises against destroying evidence.

Address Vulnerabilities

The organization should next address the system’s vulnerabilities compromised in the breach. Contact any service providers involved to assess the personal information to which the provider had access and determine if it’s necessary to change access privileges.

Work with the forensics team to understand if the breach is contained and determine the status of the network’s backup data. This process should also produce the number and types of records compromised. Begin corrective measures as soon as possible.   

Notify Appropriate Parties

The guide instructs businesses to notify law enforcement, other affected businesses, and affected individuals. Work with the insurance company’s assigned legal counsel to ensure compliance with all state and federal notification requirements.

Please refer to the Federal Trade Commission’s Data Breach Response Guide for more detailed steps.

For those who are interested in learning more about how cyber-crimes affect real businesses, watch “Cyber Liability Explained: Hacking Trends for 2023.”

 Contact me to discuss the merits of cyber liability insurance or a possible data breach at (619) 937-0175 or sbrown@ranchomesa.com.

Guidance for Developing an Effective Injury and Illness Prevention Program

Author, Sam Brown, Account Executive, Rancho Mesa Insurance Services, Inc.

As some company leaders may recall, since 1991, all California employers are required to maintain a written Injury and Illness Prevention Program (IIPP). An IIPP is an understandable and accessible safety program tailored to a business’ operations. An effective IIPP will help an employer establish and maintain a safe workplace while setting expectations and protocols for all employees.

The information below outlines the necessary elements of a written and effective IIPP, while recommending a resource to use when creating or updating the plan.

Cal/OSHA requires all Injury and Illness Prevention Programs to contain nine critical components:

1. A person (or persons) with authority and responsibility for implementing the program is identified.

2. A system for ensuring employees comply with safe and health work practices.

3. A system for communicating with employees in a form readily understandable by all affected.

4. Procedures for identifying and evaluating work place hazards.

5. Procedures to investigate occupational injury or illness.

6. Procedures for correcting unsafe or unhealthy conditions, work practices and procedures.

7. Provide employee training and instruction.

8. Procedures to allow employee access to the Program.

9. Recordkeeping and documentation.

California employers looking for guidance on the Cal/OSHA required Injury & Illness Prevention Program can often feel overwhelmed when addressing all required elements, while also abiding by the best practices of updating the plan, annually. Fortunately, California’s State Compensation Insurance Fund offers a free IIPP builder to all employers.

The State Fund’s IIPP Builder will help an employer create an IIPP from scratch, but can also help improve an existing program to make it more effective and compliant. An employer is first asked to answer a series of questions about safety practices. The answers will help build a safety program and tailor it to the business. The IIPP builder will also guide an employer through the required elements of the written IIPP.

Once finished, an employer can save the IIPP to their computer and upload it into their SafetyOne™ mobile app. They can also print and keep a hard copy at all locations. Lastly, to make it a truly effective program, the employers should share details of the IIPP with their employees.

Rancho Mesa wants clients to feel comfortable and confident when creating, updating, and sharing details of their Injury and Illness Prevention Program. To learn more about an effective IIPP and the State Fund’s IIPP BuilderSM, please contact me at sbrown@ranchomesa.com or (619) 937-0175.

Inflation Increases Cost of Workers’ Compensation Claims

Author, Sam Brown, Account Executive, Rancho Mesa Insurance Services, Inc.

As non-profits and leaders of human service organizations navigate important business decisions in the face of inflation, it’s important to consider measures that can reduce inflation’s impact to an organization’s operating budget. Today, we look at inflation’s effect on workers’ compensation insurance and strategies to reduce future costs.

In August 2022, the U.S. Bureau of Labor Statistics published data reflecting an 8.3% increase to the Consumer Price Index  for All Urban Consumers over the previous 12 months. If medical costs are the largest expenditure in workers’ compensation claims, how is the recent inflationary trends affecting worker’s compensation medical and claim costs?

Medical costs per workers’ compensation claim increased almost 18% between 2012 and 2021 according to a study by the National Council on Compensation Insurance (NCCI). Moving forward, the Office of the Actuary at the Centers for Medicare and Medicaid Services projects an index closely related to medical costs in worker’s compensation will increase 2.5% to 3% beyond 2022. Inflation has impacted many segments of the economy, including workers’ compensation insurance.

Strategies to reduce inflation’s impact to workers’ compensation insurance premiums, include:

• Offer modified duty to all injured workers.

Offering modified duty to employees with work restrictions is widely known to reduce the likelihood of workers’ compensation litigation and reduces the overall cost and duration of the claim. In addition, if an injured employee rejects the offer, then the individual can no longer receive temporary disability benefits. These positive outcomes may help explain why at least one insurance company offers a 10% rate discount to employers that offer modified duty to all injured workers.

• Consider on-call medical technician and telephonic nurse triage services.

Rancho Mesa has published articles about the benefits of on-site medical evaluations and nurse-triage services, but they deserve a fresh look. Both services can advise the injured workers on proper self-care, thereby providing the employee with helpful treatment options while avoiding a costly workers’ compensation claim. The employer will also avoid paying the injured worker’s wages while they travel to and wait inside a medical provider’s office.

The nurse-triage service will continue to manage the injury and help the employee determine if further medical care is necessary. Of course, employers should always report the incident to the workers’ compensation carrier.

• Consider an alternative workers’ compensation plan to gain more control over claim and insurance premiums.

It’s true that self-insured worker’s compensation plans are typically reserved for very large organizations, but options exist that replicate some of the most beneficial features. The available options depend on the size of the employer.

Small to medium sized employers can explore self-insured groups (SIG) to potentially split payroll between class codes and receive dividends. SIGs are very motivated to help members avoid workers’ compensation claims, but also closely manage open claims. A member vote is typically required after a review of an applicant’s safety plan, safety record, and operations.

Medium to large organizations may consider loss-sensitive plans. The policy will typically offer reduced annual premium if the employer can control claim frequency and claim costs. There may also be an opportunity to share in the underwriting profit following a plan year. Of course, the insured may also need to share in the claim costs in a poor performing year.

Another alternative, workers’ compensation deductible plans, can also offer a premium savings if the employer is willing to pay a deductible on each claim. Deductibles can range from $10,000 to $100,000 or more, depending on the employer’s risk tolerance.

Looking at alternative workers’ compensation strategies and plans can help employers navigate the current pattern of inflation. The information above can reduce claim frequency, claim cost, and also inform nonprofit and human service leaders about potential insurance premium savings available.

To discuss your organization’s options, contact me at (619) 937-0175 or sbrown@ranchomesa.com.

Training Supervisors on Workplace Injury Protocol Can Improve Claim Outcomes

Author, Sam Brown, Account Executive, Rancho Mesa Insurance Services, Inc.

California employers work hard to maintain a safe workplace, but accidents and injuries can occur. While human resources professionals typically have an excellent understanding of the workers’ compensation claim process, proper supervisor training can improve workers’ compensation outcomes for employers and their injured workers.

Supervisors are often the first to become aware of a workplace injury. Without proper training a supervisor may have the best of intentions, but can create problems by not following company protocols. Sound supervisor training may include:

• How to Get the Injured Worker Medical Attention
  Supervisors should know the designated medical provider or understand how and when to direct an employee to use telephonic nurse triage services. The supervisor should know what information the provider will need and, if necessary, how the injured worker should be transported to the medical provider’s physical location.

• Internal Communication
  Supervisors must know how to initiate documenting a workplace injury and how to notify the proper parties of the incident. What incident report should be used? Are witness statements important? Who needs to know of the incident as soon as possible? Whose responsibility is it to report the claim to the insurance company?

• Effective Communication
  A supervisor setting a tone of empathy immediately following a workplace injury can lead to positive outcomes and reduce the likelihood of litigation. Effective communication can even reduce claim frequency. A study by Shaw, et al., shows how four hours of supervisor training on communication skills and accommodation for workers reporting health concerns produced “a 47% reduction in new claims and an 18% reduction in active lost-time claims.”

Well-designed training can greatly improve workers’ compensation claim outcomes when supervisors follow company protocols, get injured workers medical care, and practice effective communication in the workplace.

Rancho Mesa has developed downloadable forms for the Supervisor’s Report of Employee Accident or Near Miss, and Witness’ Statement to help collect important information about an accident.

For more information on effective workers’ compensation programs, please contact me at sbrown@ranchomesa.com or (619) 937-0175.

Duty to Defend vs. Reimbursement: A Short Comparison

Author, Sam Brown, Account Executive, Rancho Mesa Insurance Services, Inc.

You hoped this day would never come, but it’s time to notify your insurance agent of a liability insurance claim. You know you need to retain defense counsel, but who chooses the firm and pays the bills?

To answer this question, it’s important to understand the difference between “duty to defend” and “reimbursement” policy language. It is this language which determines who selects legal counsel.

Duty to Defend                                                                       

Duty to defend is a term used in insurance policies “to describe an insurer’s obligation to provide defense against claims made under a liability insurance policy,” according to the International Risk Management Institute.

Once the claim is made, the insurer selects and retains counsel for the insured, typically choosing from a panel of highly regarded law firms at negotiated rates. Appointing a law firm with whom there is a strong working relationship can slow the wearing down of policy limits and simplify the billing process between the law firm and insurance company.

Reimbursement

Conversely, a reimbursement policy form obligates a policyholder to provide and pay for its own defense, subject to the insurer’s written approval of the firm and rates. The insurer is then obligated to reimburse the policyholder for defense costs.

While selection of counsel can be preferred, a reimbursement form requires policyholders to take an active role in managing legal expenses. Policyholders should also exercise patience as the insurer conducts a detailed bill review and submits adjustments. Submitting monthly invoices to the insurer can help avoid friction.

If considering a reimbursement form, an honest assessment of your company’s balance sheet will help determine if paying the legal bills upfront and patiently awaiting reimbursement is worth the flexibility in choosing defense counsel.

If you have questions about your current insurance policies or are interested in discussing this subject further, please contact me at sbrown@ranchomesa.com or (619) 937-0175.

Four Factors Contributing to Employee Theft

Author, Sam Brown, Vice President of Human Services, Rancho Mesa Insurance Services, Inc.

Crime insurance policies act as one line of defense against financial loss to an employer. At times, guarding against theft can feel like an uphill battle with many factors outside of our control. One common form of crime insurance claims may be more preventable than ever with some quick education. We are talking about employee theft.

Employee theft can come in the form of stolen petty cash, liberal use of gas cards, or payroll fraud. A review and understanding of the most common reasons why employees steal from their employer can help prevent such crimes.

1. Financial Need

Real or perceived, a financial crisis can drive an employee to steal. Examples include family illness, falling behind on bills, personal debts, or even the desire to have clothing or material possessions the employee cannot afford on their own.

2. Perceived Unfair Treatment

Employees justify stealing when they believe the employer has overworked and underpaid its employees. An employee may also blame management when job performance does not warrant a pay increase. Employees may feel the company owes them.

3. Opportunity

One theory suggests that even honest people will steal if there is ample opportunity. It would make sense then that the incidence of theft increases for employees near unsecured cash or valuable property. This is especially true for employees who understand the worth of company property.

4. Workplace Norms

Employees who see co-workers get away with stealing from the company are more likely to commit theft themselves. Conversely, a quick reminder to a new employee that theft of an any kind is not condoned can adequately communicate what is and what is not to be tolerated.

Understanding factors that drive an employee to steal from an employer can help organizational leaders identify suspicious behavior. This may also lead to management decisions made to influence company culture in a positive way.

Please contact Rancho Mesa Insurance if your private company or non-profit organization has questions about crime insurance and employee theft.

Nonprofits Insurance Alliance® Discusses Their Mission

On February 8th, 2022 Sam Brown, Vice President of Human Services Group, welcomed Nonprofits Insurance Alliance® (NIA) founder, president, and CEO Pamela E. Davis to Rancho Mesa’s StudioOne® podcast.

Pamela shared how she turned a graduate school project and a vision for insuring nonprofits into $250 million in written premium.  

Sam and Pamela discuss how a nonprofit specialist broker serves clients, and how NIA provides cost-saving tools tailored for nonprofit leaders and brokers.

Listen to the full interview below.

SB 606 Broadens Cal/OSHA’s Enforcement Reach

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

California Governor Gavin Newsom recently signed into law Senate Bill 606 (SB 606), greatly expanding Cal/OSHA’s enforcement powers and monetary penalty amounts. The new law will take effect January 1, 2022, so California employers have only a few months to tighten their safety practices or face steep monetary fines.

The new law could be especially damaging to employers with multiple worksites. SB 606 creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation, if Cal/OSHA determines either of the following is true:

• The employer has a non-compliant written policy or procedure.

• Cal/OSHA "has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer's worksites."

This change creates the possibility that a California employer adhering to a written program applicable to all locations can be cited for each California worksite.

Cal/OSHA will also have the authority to seek a temporary restraining order and an injunction against any employer suspected to have committed an enterprise-wide violation.

The far-reaching second part of the law states that if Cal/OSHA determines an employer has “willfully and egregiously” committed a violation, the employer may receive a citation “for each egregious violation” and “each instance of any employee exposed to that violation shall be considered a separate violation for purposes of the issuance of fines and penalties.”

The law details seven bases for “egregious” conduct. Proof of only one will be sufficient to justify a citation.

California employers must prioritize a full review of safety policies, procedures, and practices to reduce the likelihood of an “enterprise-wide” or “egregious” conduct violation. Cal/OSHA’s Consultation Branch offers free on-site visits to proactively address any potential violations.

 For helpful safety resources and compliance information, please contact me at (619) 937-0175 or sbrown@ranchomesa.com.

Risk Bow Tie Exercise

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

Rancho Mesa’s non-profit clients successfully serve their communities in changing economic and political climates. In part, their success is due to managing risk for an organization’s employees, clients, finances, and mission. Just as important, but less discussed than risk management, is risk analysis. This article offers one helpful tool non-profit leaders can use to facilitate risk analysis, the Risk Bow Tie Exercise.

Introduced to Rancho Mesa by the Nonprofit Risk Management Center’s book World-Class Risk Management for Nonprofits, the Risk Bow Tie technique helps nonprofit leaders consider an event’s positive and negative consequences in a group setting. Following the exercise, participants may feel empowered to utilize the technique in multiple departments to analyze both expected and unexpected events. 

The five steps of the bow tie exercise include:

1. Identify a potential event.

2. Identify some of the underlying conditions that make the event more or less likely, more or less impactful, and more or less urgent.

3. Identify some of the consequences or ripple effects,  both positive and negative, should the risk materialize.

4. Identify preventative risk management steps or controls that could make the event less likely or less detrimental.

5. Identify risk management steps or controls that could be planned now, but implemented after the event has occurred, to reduce the potential negative consequences.

The image below, from page 152 of World-Class Risk Management for Nonprofits, is a sample Bow Tie Worksheet.

Risk Bow Ties Worksheet image provided by World-Class Risk Management for Nonprofits.

Performing the exercise in a workshop or group setting will usually provide one or more of the following insights:

• The group uncovers details of an event that had not previously been discussed or observed.

• Both positive and negative consequences can result from one event.

• The exercise brings to light unique perspectives and experiences from multiple participants.

• Identifying important underlying conditions and consequences better informs the creation of relevant controls.

• Team members can perform a risk analysis in a fun, accessible and informal way.

Nonprofit leaders can use a diverse set of tools to analyze and manage risk. Rancho Mesa encourages clients to ask about various tools we have available to prepare for both the expected and unexpected.

To learn more about the Risk Bow Tie technique contact me  at sbrown@ranchomesa.com or (619) 937-0175.

Historic Wildfire Losses Alter Risk Assessments for Many Buildings

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

The 2017 historic wildfire losses and ever-changing atmospheric conditions continue to alter the commercial property insurance marketplace in 2021.

Insurance carriers have used the CoreLogic® Wildfire Risk Score to evaluate risk and pricing since 2003 without significant changes to the Risk Score’s calculation. However, 2017’s wildfire season put change in motion.  

According to CoreLogic, 2017’s fire activity increased in scope and occurred in areas that previously had not been considered high risk areas. Analysis of the fires’ impact noted the surprising intensity with which the fire spread and how the fires burned deep into urban residential neighborhoods without the traditional fuel sources one would expect to see. The analysis also determined that both wind and drought played a major role in the fires’ spread and severity.

Since 2017, California has experienced its most destructive fire in its history, the Camp Fire which burned in 2018 and its most destructive fire season on record in 2020. Analysis of the destruction and pre-fire conditions confirmed the relationship between drought and wind with the size and scope of the fires.

In response to the growing data set and changing conditions, CoreLogic now incorporates wind risk data and the drought factor into the 2021 Wildfire Risk Score. While some structures will see no change in risk score, other areas will be negatively impacted. The bottom line is the wildfire risk score will make some structure very difficult and costly to insure properly.

Rancho Mesa clients and brokers will continue to discuss the changing property insurance landscape as more information and underwriter feedback is gathered.

To discuss how to best insure your commercial property, please contact me at (619) 937-0175 or sbrown@ranchomesa.com.

Cyber Attacks Threaten One-in-Six Firms’ Survival

Author, Sam Brown, Vice President of the Human Services Group, Rancho Mesa Insurance Services, Inc.

The dramatic increase in cyber-attacks since 2020 has resulted in employer pain and made headlines as the economic cost skyrockets. The recent Hiscox Cyber Readiness Report 2021 states that the number of firms attacked rose from 38% to 43%. Not surprisingly, more than 28% of those employers suffered multiple cyber-attacks.

Determining the cost of a breach can be difficult, but the report states that one-in-six firms’ survival was threatened. Over 58% of firms hit with a ransom paid the threat-actors to regain access to the computer system and vital information. In 2020, the standalone cyber loss ratio increased to 73%, its highest level since separate cyber data were included in financial reporting, six years ago.

The increase in cyber-attacks and claim payouts is causing alarm in both insurance companies and businesses. According to the Insurance Journal, insurance companies are quoting significant premium rate increases and tighter coverage terms to improve underwriting performance and profitability. The average cyber renewal premium rate increased 11%. Meanwhile, written premiums for standalone cyber coverage increased 29% in 2020, a sign of growing demand.

The shift to a remote workforce and an increase in phishing email has tested network security systems. Fortunately, many insurance carriers now offer a cyber readiness assessment to help policyholders address vulnerabilities and avoid cyber-attacks.

As cyber-attacks continue, it is important for all employers to learn more about the specific exposures that cyber insurance coverage can cover along with ways to improve cyber security.

We will be offering a Cyber Liability workshop in the coming weeks, so be sure to look for that information on our workshops and webinars webpage.

Please contact me at (619) 937-0175 or sbrown@ranchomesa.com to discuss our process of developing competitive quote options.

Can Employers Mandate a COVID-19 Vaccination Policy?

Author, Sam Brown, Vice President of the Human Services Group, Rancho Mesa Insurance Services, Inc.

As COVID-19 vaccinations become more available and the positive results of our efforts are realized, employers may ask how this impacts the workforce and a full-scale return to the workplace. More specifically, they may ask if an employer can mandate a COVID-19 vaccination policy.

The laws are complex, so please do not rely on this article as legal advice. Please consult your labor law attorney before deciding how to proceed.

The short answer is yes, employers can mandate a COVID-19 vaccination for employees, when it makes sense. 

The 1905 court case Jacobson v. Massachusetts forms the U.S. Equal Employment Opportunity Commission’s (EEOC) basis for guidance. Following a deadly smallpox outbreak in New England in 1901, the Supreme Court ruled that the government may impose “reasonable regulations” to protect the “safety of the general public.” The EEOC makes clear that employers may implement similar demands.

According to the EEOC, an employer can implement a mandatory vaccination policy if there is a job-related need for it or if non-vaccination threatens the health of other employees, customers or themselves. The EEOC’s guidelines date back to the 2009 outbreak of H1N1, and was updated in March 2020.

A mandatory COVID-19 vaccination policy would commonly be used in a health care environment or in emergency services where the likelihood of exposure may be higher based on the nature of the work, opposed to the average office environment that is following the Centers for Disease Control COVID-19 guidelines along with implementing a COVID-19 Prevention Plan.

Employers should take caution when deciding whether or not to implement such a policy and whether it makes sense for their industry and organization. According to OSHA’s January 2021 Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, employers should not distinguish between workers who are vaccinated and those who are not. All employee should follow the same safety precautions regardless of vaccination status. 

Essential workers in sectors like construction and landscaping, community-based organizations and financial services to name few, can operate under the provided guidance without requiring their employees to get the COVID-19 vaccine in order to resume normal business operations.

Some employers are waiting to impose a mandatory vaccination policy, choosing instead to offer employees incentives for getting vaccinated. These incentives may include a vacation day, a few hours of regular pay, or a cash bonus. To avoid discrimination, an employer may offer the incentive to all employees if the company’s work force meets a vaccination goal. Whatever path you decide, make sure to include the policy in your employee handbook or COVID-19 Prevention Plan.

Considering a recent Kaiser Family Foundation survey, 27% of Americans are “vaccine hesitant.” So, the employer will need to decide if a COVID-19 vaccination policy is right for their organization.  Questions regarding mandatory vaccinations will continue to present a challenge to employers.

For specific questions about your company’s vaccine policy, consult our RM365 HRAdvantage™ portal’s live HR experts.

Risk Management and the Virtual Workforce

Author, Sam Brown, Vice President, Human Services Group, Rancho Mesa Insurance Services, Inc.

As American employers navigate the Coronavirus Pandemic, many business leaders quickly adapted to a virtual office and virtual workforce. While many organizations anxiously wait for the day employees can all safely head into the office Monday through Friday, employers must adjust risk management practices to account for the virtual workforce.

Cyber Crime

Prior to the pandemic, the FBI would routinely receive 1,000 cybersecurity complaints, daily. Since the COVID-19 outbreak began, the number of complaints has increased to 3,000 to 4,000 every day according to Tonya Ugoretz, deputy assistant director of cyber division of the FBI in a webinar hosted earlier this year. The most commonly targeted industries are health care, manufacturing, financial services, and public sector organizations. Stated plainly, cyber criminals are successfully exploiting weak virtual cybersecurity and poor execution on the part of remote employees.

Brett Landry of Landry IT, recently stated that 85% of employees circumvent “acceptable use” policies when using a company owned device, reinforcing the need for increased employee training.

Mr. Landry highly recommends employers update security patches on all devices, adopt a higher standard for password security, utilize two-factor authentication, and train employees how to recognize phishing and social engineering efforts.

How will a cyber liability insurance policy respond to this new threat?

Important questions to ask:

• Will my policy cover a remote exposure?

• Will my policy cover incidents involving personal devices?

• Is Social Engineering covered?   

• Will my policy respond if an employee does not follow company procedures?

Workers’ Compensation

Allowing employees to work from home has resulted in some employees moving out of state. When this occurs, the employer should report the new working address to the insurance company to ensure the workers’ compensation insurance policy will cover an injury. In some cases, the insurance company can add the new location. If not, then the employer may need to purchase a separate workers’ compensation policy for that employee’s new state.

In an effort to manage the risk of employee injury, employers should design and implement work-from-home policies. Effective policies will clearly define work hours, communicate standards for a home office, train employees on ergonomics, reinforce work and safety rules, and remind employees of the claim reporting process. Establishing the above expectations may help employees avoid injury and legal disputes over compensability.   

Directors & Officers Liability

Remember that a Directors & Officers Liability policy protects individuals from personal losses if sued for their role as a director or an officer of a company and not indemnified by the company. While a move to a virtual workforce doesn’t inherently put a board member at risk, big changes to company policy can result in missteps if employees do not receive proper communication and training. Ultimately, directors and officers are held accountable if company policies are not followed, highlighting the need for diligent execution of important company changes.

Rancho Mesa supports clients in developing employee manuals, work-from-home policies, and 2021 changes to labor law. Please contact me at (619) 937-0175 to discuss how Rancho Mesa can support your business or mission.

AB 685 Creates New Notice and Reporting Requirements

Author, Sam Brown, Vice President of the Human Services Group, Rancho Mesa Insurance Services Inc.

On September 17th, 2020 Governor Gavin Newsom signed into law Senate Bill 1159 (SB 1159) and Assembly Bill 685 (AB 685), both COVID-19 related bills.

Both pieces of legislation will impact how employers respond to incidents of COVID-19 infections. This article will help business owners and officers understand AB 685’s heightened occupational health and safety rules. Employers also need to understand how AB 685 grants California’s Occupational Safety and Health Administration (Cal/OSHA) greater enforcement powers.

Posting Requirements

AB 685 requires California employers to provide the following four notices within one business day of being informed of a potential COVID-19 exposure:

1. Provide a written notice to all employees, and to the employers of subcontracted employees, who were at the same worksite within the infectious period, notifying the employee that they may have been exposed to COVID-19. It must be reasonable to assume the employees will receive the notice within one day, whether that is through email, text, or written notification.

2. If the employee population includes represented employees, then the employer must also send notice to the exclusive representative of the affected bargaining unit.

3. The employer must also provide notice of any COVID-19 related benefits or leave rights under federal, state, and local laws, or in accordance with employer policy. The employer must also notify employees of their protections against retaliation and discrimination. 

4. The employer must notify all employers, the employers of subcontracted employees, and any exclusive representative, of the employer’s plan to complete a disinfection and safety plan in accordance with federal Centers for Disease Control guidelines.

Employers are required to maintain records of these notices for at least three years. Failure to comply with the notice requirements may result in a civil penalty.

If an employer learns of an “outbreak” as defined by the California Department of Public Health (“CDPH”), the employer must also notify the appropriate public health agency within 48 hours with the names, occupation, and worksite of any “qualifying individuals” related to the “outbreak.”

Two exceptions to the notice and reporting requirements:

1. Health facilities as defined in Section 1250 of the Health and Safety Code, are not required to report an “outbreak” within 48 hours.

2. The notice requirements do not apply to exposures by employees whose regular duties include COVID-19 testing and screening, or care to individuals who have or who are suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.

Authorized Shutdown

Under AB 685, if Cal/OSHA determines that a workplace or operation within a workplace exposes employees to a risk of COVID-19 infection, creating an imminent hazard to employees, Cal/OSHA is authorized to prohibit entry to the workplace or the performance of operation in question.

If your organization would benefit from guidance on these new employer requirements, please contact Rancho Mesa Insurance at (619) 937-0175.  

Sources:

https://www.lcwlegal.com/news/governor-newsom-signs-sb-1159-and-ab-685-into-law-impacting-covid-19-related-workers-compensation-coverage-and-creating-new-notice-and-reporting-requirements-related-to-covid-19-workplace-exposures

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685

Nonprofits Eligible for Free Digital Advertising

Author, Sam Brown, Vice President, Human Services, Rancho Mesa Insurance Services, Inc.

According to the Blackbaud Institute, charitable giving creeped up by only 1% in 2019… But online giving increased 6.8% last year and increased 10% over the last three years! To help avoid a decrease in private donations due to the Coronavirus pandemic, nonprofit leaders have turned their attention to a powerful tool used to increase website traffic and online donations: Google’s Ad Grant Program.

Consider how many organizations spend thousands of dollars each month on Google Ads to gain website traffic, market share, and online customers.

Now consider that Google Ad Grants provide up to $10,000 per month (maximum of $329/day) of free advertising on Google search result pages to eligible nonprofit organizations. The result: high-quality, converting traffic.

Marketing consultant Reese Harris, founder of Ree-Source, Inc, adds “Whether you are driving donations, increasing brand awareness, or amplifying engagement, the Google Ad Grant Program is essential for any nonprofit organization. We encourage all nonprofits to include this strategy in their marketing and outreach.”

To make this a successful strategy, most nonprofits should make use of Geo-Targeting. In other words, your ads should only show to searchers in locations that are important to your organization.

It’s also important to track and measure the results of your campaign. That’s the beauty…this is the internet, not a billboard! Google will provide you with a behind the scenes pass to view exactly which of your keywords attract converting traffic and which keywords aren’t working.

Google Ad Grants is an amazing tool nonprofit leaders can use to increase awareness, web traffic, and engagement. Regardless of your web-marketing experience, the learning and adjusting is an ever-evolving process that promises to deliver. Good luck!

Rancho Mesa understands the importance of every dollar that is raised by nonprofits through advertising efforts, donor relations and fundraisers. That is why we offer the risk management tools your organization needs to minimize costly risks and manage insurance costs, so more of your funds can serve your mission.