Your Daily Three: May 12
May 12, 2020
We are sharing again today some questions that we received from clients and how we are responding.
Q1: “I own a business that has been significantly impacted. I do have commercial property insurance that provides for business interruption coverage, but I don’t know whether it covers this situation. How are insurance carriers in Illinois handling these claims, and what is the best way for me to proceed?” Answered by Gary Blackman
A: This is one of the most frequently asked questions by our clients and friends, and for a good reason. Other than getting PPP proceeds, business interruption insurance may be the only other viable means of revenue recovery. Traditionally, the purpose of having business interruption insurance is to afford business owners coverage for property damage arising from catastrophic, natural disaster type events, like hurricanes, floods, or tornados. Most insurers, facing massive Covid-related claims nationwide, are taking the position that their policies were never intended to cover virus-related claims arguing, among other things, that the introduction of a virus does not constitute direct physical loss or damage to property. More recent policies might even contain contamination exclusions, which include “viruses” in their definition of contaminant.
Policyholders, of course, believe they are entitled to coverage as their businesses have been interrupted by natural events outside of their control. As a consequence, countless lawsuits have already been filed asking courts to declare that a particular policy provides coverage, the insured’s lawyers often arguing for a broader interpretation of what constitutes “property loss or damage” necessary to trigger coverage.
One recent case may provide some insight into an insured’s right to coverage. Last month, the Pennsylvania Supreme Court rejected a constitutional challenge to Pennsylvania Governor Tom Wolf’s executive order closing non-life sustaining businesses. The court noted that the governor’s order was entered to prevent the spread of COVID-19, explaining that: “The virus can remain on surfaces for days …” and that “COVID-19 qualifies as a “natural disaster” providing the governor statutory authority to issue that order because it, like other natural disasters specified in the statute, involves “substantial damage to property, hardship, suffering or possible loss of life.” The civil authority orders themselves, therefore, may provide a basis for the argument that the Covid virus has caused “property damage” as that term is contemplated in an insurance policy.
Recognizing that this type of coverage is critical to the survival of both businesses and local economies, many states have already proposed legislation that would provide a mechanism by which individual companies could recover Covid-related losses from their insurer if they had a policy of business interruption insurance in force on or before a specific date (i.e., New Jersey, Massachusetts, Ohio, New York, Louisiana, Pennsylvania, and South Carolina).
So, given the uncertainty, what should you do if you think may have a claim? Call your broker, confirm that you have business interruption coverage, and file a claim. If you are denied, talk to a lawyer as you may still have available rights and remedies.
Whether coverage applies is subject to the specific terms and conditions of the insurance policies and contracts at issue and underwriter determinations. It is critical to review each policy of insurance in its entirety to determine the extent, if any, of coverage available for the effects of the coronavirus.
Q2: “I’m on my company’s re-opening team. In addition to all of the personnel challenges and considerations, we are focused on quickly making physical changes to the space before we allow employees back in. What things should we focus on first if we can’t focus on everything or do any sort of construction?” Answered by Laura Friedel and Kevin Corrigan
A: Unless provided for in a state or local executive order, there is generally no set of standards all employers must follow for preparing a workplace for reopening during the pandemic. Employers have a general duty under the Occupational Safety and Health Act to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm, but are not bound by any specific requirements related to coronavirus. Rather, OSHA has provided general guidance on preparing workplaces for the virus, available here.
The focus should be on taking reasonable steps to prevent infection. What those reasonable steps are will depend on the particular business, workplace and needs. While a re-opening plan involves many different considerations, here is a good starting point for quick and affordable improvements.
- Reconfigure your space to spread out desks/work stations and put more employees in enclosed offices if possible.
- Consider using workspace dividers
- Common use glassware and cups should be removed
- Eliminate in-person meetings where possible, and if a meeting is required, reduce chairs in meeting rooms, so that rooms are set up for individuals to sit at least six feet apart.
- Utilize traffic control signage for hallways (one way)
- Close common areas (such as lounges, kitchens, breakrooms) or restrict to single-use, keeping in mind that spaces like wellness rooms may need to remain open to provide a space for employees to express breast milk or for religious accommodations
- Provide hand sanitizer throughout the workplace
- Ensure there are trash bins throughout the workplace so that tissues and other garbage can be quickly disposed of
- Require face coverings at all times, unless in a closed office.
Q3: “What is the impact on Severance and Deferred compensation/Equity Incentive Arrangements?” Answered By Kristy Britsch
A: Severance obligations vary based on whether an employer has a written severance plan or policy and, if so, whether the plan is subject to ERISA. Generally, a severance arrangement will be considered a plan subject to ERISA if the arrangement requires an ongoing administrative scheme. By contrast, employers may establish a one-time, non-discretionary fixed payment due to a limited event (such as a plant closing) without creating an ERISA plan. Employers with severance plans governed by ERISA must administer their plans following the written plan document. An issue such employers may face is whether employees impacted by a layoff or furlough are eligible to receive benefits under the terms of their severance plan document.
Under most bonus, deferred compensation and equity incentive plans, a participant’s vesting rights are affected by whether the employee quits or is terminated without cause. Also, many equity incentive compensation plans, employment agreements, severance agreements, short- and long-term bonuses, or other long-term incentive compensation plans and arrangements have payments triggered upon the termination of employment.
You should evaluate your existing contractual obligations to pay severance benefits to confirm if the acceleration of payment is required and also consider whether to offer new or additional severance benefits to employees who are furloughed or terminated. It is also wise to confirm whether an employee’s layoff or furlough due to the COVID-19 outbreak entitles an employee to be partial or full vesting or payment under your equity incentive compensation plans, employment agreements, severance agreements, short- and long-term bonuses or other long-term incentive compensation.
For more resources and LP's response to COVID-19, visit this webpage.