Happy February! Yesterday, Sun Prairie's Jimmy the Groundhog predicted an early spring, so we'll take his word over six more weeks of winter as predicted by Punxsatawney Phil. In this week's Big I Buzz, we are discussing the new OSHA workplace safety guidelines, the just-released rules for the Tokyo Olympics this summer and the 10 "least reliable" cars on the road in 2021. 

OSHA Issues COVID-19 Workplace Safety Guidelines

The new guidance from the OSHA seeks to protect all types of workers, not just the ones who are deemed to be at higher risk of contracting the virus depending on where they work. It also asks employers to shield workers from retaliation if they complain about the conditions and sets up ways for them to voice complaints anonymously. The new OSHA guidance wants employers to give workers a bigger say in developing safety protocols. 

Much of the guidance released on Friday, January 29th are similar to guidelines from the Trump administration. Many workplaces have already adopted the guidelines, like those asking workers to keep at least six feet away from each other and asking workers to wear face masks. Read more of the guidelines here. 

Olympic Officials Unveil Rules on Masks, Singing, Transport for COVID-19 Games

The Tokyo Games are planned for this summer, and Olympic officials have unveiled their new COVID-19 rules. These rules have banned singing and chanting during events, participants are mandated to wear a mask at "all times" unless they are eating, sleeping or outdoors. The new rules have also pushed to barr international federation officials and staff from using public transport without permission, a move that they will hope will ease the Japanese public's concerns about hosting the Olympic games during a pandemic. Read more about the rules and the Summer Olympics here. 

10 Least Reliable Cars on the Road in 2021

Consumer Reports has released its list of newer-model vehicles with the greatest risk of problems. CR surveyed over 300,000 car owners on their vehicle's performance and the study examined 17 different trouble areas from basic nuisances such as squeaky brakes to significant issues like out-of-warranty repairs. Only vehicles with the latest model years of data were considered for this list. Here's what they found: 

1. Chevrolet Silverado 1500 - Consumer Reports gave this car a reliability score of 13. 

2. 2021 Subaru Ascent - CR awarded this vehicle an 18 or reliability. 

3. 2021 Volkswagen Atlas - CR didn't place this one much higher than the Subaru Ascent, sitting at a reliability score of 19. 

4. 2021 Jeep Compass - Slowly moving up on the CR ratings, the Jeep Compass has a reliability score of 21.

5. 2021 Volvo XC90 - CR gave this vehicle a score of 26. 

6. 2021 Chevrolet Colorado - Tied with the Volvo, the Chevy Colorado was given a 26 reliability score. 

7. 2020 Tesla Model S - At a three-way tie, this Tesla also was given a 26.

8. 2021 Jeep Wrangler - Consumer Reports rated this a 27 for reliability. 

9. 2021 Ford EcoSport - 28 reliability score

10. 2021 Volvo XC60 - Tied with the Ford EcoSport, the Volvo XC60 also received a reliability score of 28. 

Read more here: https://www.propertycasualty360.com/2021/02/01/10-least-reliable-cars-on-the-road-in-2021/

For more news, check out the Action News section of our weekly e-newsletter    Big I Buzz.    If you aren't subscribed, click     here    to add your email to our emailing list. Don't forget you can stay up-to-date on other industry news and conversation by joining the IIAW's Online Community, exclusively for IIAW members. You can join the Online Community here. We hope that everyone has a great rest of their week! 

By: Chris Boggs | Big I Virtual University Executive Director

This article was originally published in our September 2020 Wisconsin Independent Agent. Read more from our September issue here. 

Thousands of restaurants engage in food delivery. This is, by no means, a new phenomenon. With that reality in mind, two questions arise:

1. Is the restaurant covered for food delivery if it does NOT have a business auto policy; and

2. How does a restaurant’s business auto policy respond to food delivery when they have the  coverage?

What appears to be two simple questions simply aren’t.

The simple answer is, yes, the restaurant is covered for its auto liability exposure – well, maybe there is coverage. The more  complicated answer is, yes, the restaurant is covered, but is that coverage adequate for the restaurant and the employee?

Let’s begin by looking at the reality of coverage when the employee is using his or her personal auto to make deliveries for the restaurant. The questions that must be answered include:

• Is there liability coverage in the personal auto policy (PAP) for food delivery?

• Is coverage provided by the business auto policy (BAP) for employees using their  personally-owned autos for food delivery?

• Who is covered by the BAP, if coverage is provided?

• Which policy is primary?

• Which policy is excess?

• What key endorsement is needed?

Coverage in the PAP

Decades ago, pizza and maybe Chinese food delivery began the PAP’s delivery coverage  debate. Does the personal auto policy cover food delivery? Note that as this question is answered, Grub Hub, Uber Eats and every other such app-based food delivery service are completely ignored. The focus here is solely on food delivery by the employee of one restaurant.

PAP Exclusions of Interest

Whether the PAP provides liability coverage for food delivery is a function of two exclusions: the business use exclusion and/or the public or livery conveyance exclusion.

Business Use Exclusion: The business use  exclusion is a non-factor in this discussion. The PAP excludes the use of an auto when being used in an auto-related business (sales, service, repair, etc.), unless the car is owned by the named insured, a family member or others provided the car is listed on the PAP. So, this exclusion can be ignored.

Public or Livery Conveyance Exclusions: This exclusion may have more teeth. The applicable part of this exclusion reads:

EXCLUSIONS

A. We do not provide Liability Coverage for any “insured”:

5. For that “insured’s” liability arising out of the ownership or operation of a vehicle while it is being used as a public or livery conveyance.

Does an employee delivering food qualify as either public or livery conveyance? If so, the PAP provides no coverage. Although generally phrased as one concept, public conveyance and livery conveyance are actually two  different threshold requirements (notice the “or” between the terms). Let’s define both terms to clarify coverage (or the lack thereof).

• Public conveyance: Making the vehicle available for public use (like a common carrier);

• Livery conveyance: Carrying persons or property for a fee.

Is food delivery for one restaurant considered “public conveyance”? No, the vehicle is not available for public use; it is being used by the employee on behalf of his/her employer only, and only for a single purpose – food delivery. Making the vehicle available for public use is what the ride sharing and food delivery apps do. When working for one restaurant, the vehicle is not available to others (to the public).

However, does food delivery trigger the “livery conveyance” exclusion? The employee is carrying property (namely food), but is the cost of the food considered a fee? And considering fees, does charging a separate delivery “fee” make a difference?

Courts seem to agree that an employee delivering food for an employer is not livery conveyance, even if a separate delivery fee is charged. In a livery conveyance, the fee is charged by the carrier as their remuneration for providing the service. In pizza delivery or food delivery, the fee is charged by the employer for its own purposes (probably a charge for convenience) and is not necessarily for the benefit of the driver.

Remember, the public or livery conveyance is intended to exclude coverage for those who are in a common-carrier-like business, not the person using their personal auto to delivering property for his or her employer.

This discussion is a long way around to answering the question of coverage in the PAP. Yes, there is coverage for food delivery in the PAP. But this doesn’t mean carriers won’t try to utilize the public or livery conveyance exclusion if the injury is bad enough.

BAP and Employee Use of a Personally Owned Auto

If the employer/restaurant has a business auto policy, does that policy extend coverage for the employee’s use of their personal auto for any reason, particularly to deliver food? Secondly, who is covered?

Is Coverage Provided?

Whether liability coverage is provided by the BAP for an employee’s use of his/her personal auto on behalf of the employer is a function of the coverage symbol or symbols used.

• If Symbol 1 – Any Auto is used, yes, there is coverage. If any other primary symbol is used  (2, 3, 4 or 7), no, there is no coverage.

• If the primary liability symbol used is 2, 3, 4, or7, the only way there is coverage for use of the  employee-owned auto is if Symbol 9 –  Non-Owned Auto is also used within the liability coverage.

If either of these requirements is met (Symbol 1 or Symbol 9), then the BAP provides coverage for the employee’s use of their personal auto. But that is only part of the issue. Who is covered by the BAP?

Who is Covered by the Unendorsed BAP?

When the employee is using his or her personal auto on behalf of the named insured only the named insured (the restaurant) is protected by the unendorsed BAP. The exclusion for the employee is clearly stated within the Who is an Insured provision:

1. Who Is An Insured

The following are “insureds”:

a. You for any covered “auto”.

b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except (this means they are excluded from coverage):

(1) The owner or anyone else from whom you hire or borrow a covered “auto”.

This exception does not apply if the covered “auto” is a “trailer” connected to a covered “auto” you own.

(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.

Again, this means the BAP protects only the named insured restaurant when the employee uses his/her personal vehicle to deliver food. Worse still, because the employee is not an insured in this situation, the employer’s business auto carrier can actually subrogate against the employee.

But remember, this is how the unendorsed BAP responds, there is an endorsement that solves this problem. But before we get to the solution, we need to understand how the PAP and BAP dovetail.

Which Policy is Primary and Which is Excess?

Even though the business is benefiting from the employee’s use of his/her personal auto, the employee’s personal auto policy provides primary coverage in the event of a claim. This primary protection extends to both the   employee and the employer.

Don’t believe me? Here is the policy language:

PART A - LIABILITY COVERAGE

INSURING AGREEMENT

B. “Insured” as used in this Part means:

3. For “your covered auto”, any person or organization but only with respect to legal  responsibility for acts or omissions of a person for whom coverage is afforded under this Part.

As is seen in this language, the employee’s personal auto policy extends coverage to the employer for its vicarious liability for the actions of the employee. Although this wording doesn’t specifically state that the PAP is primary, we need only to review the BAP for proof.

The Other Insurance provision in the BAP reads:

5. Other Insurance

a. For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance.

Remember, the PAP is always primary when the policy’s named insured owns the vehicle and it is listed on the personal auto policy. The BAP is excess, but only for the employer’s benefit (unless the policy is endorsed otherwise).

Because the PAP is primary, the first issue for the employee and the employer is coverage limits. Are the employee’s PAP limits adequate in the event of an at-fault incident? Remember, both the employee and employer are covered.

Consider this scenario, the employee, while delivering food for his/her employer, is involved in an at-fault accident – hitting a surgeon on her way to the hospital. In the accident, the surgeon severely injures her right hand and can no  longer perform her surgical duties.

Will the insured (the employee) have adequate limits? Probably not (regardless of the amount). If the employee’s limits are exhausted, then the BAP responds on an excess basis (if Symbols 1 or 9 is used) – but only for the employer (in an unendorsed BAP).

Let’s throw in another “but” or “what if;” what if the employer doesn’t have a BAP? Let’s end the suspense, this is a very bad situation – for the employer.

If the employer is held vicariously liable for the actions of the employee, the employer is financially responsible for damages caused by the employee over and above what the PAP pays. This is true even if there is no business auto policy in place. The lack of insurance does not relieve a legally liable party of its responsibility to the injured party. Legal liability can be direct or vicarious (see the article “How Does a Person Become Legally Liable”).

To avoid this out-of-pocket expense, the employer needs a business auto policy to protect its financial assets – at least to the level of coverage.

Lest you get jaded and say, “But Boggs, what is the likelihood the employee will hit a surgeon?” Fair question. The victim doesn’t have to be a surgeon, nearly any accident can be financially devastating under the right circumstances.

Two recommendations so far:

• Require the employee to carry relatively high liability limits. At minimum 100/300/50. I  recommend higher with an umbrella/excess policy, but there are certain financial realities  that may make higher limits too expensive. But remember, don’t limit the insured’s  options by not letting them know that higher  limits are available.

• If the business doesn’t have a BAP, explain the dangers of not having one; namely that  the insured can still be required to pay  because of their vicarious liability for the actions of the employee. Recent anecdotal reports are that carriers are not as willing to  provide hired and non-owned liability coverage only at this point; but you have to try to find it (even in the E&S market). Some other reports are that certain carriers are going to  automatically extend this coverage if the insured restaurant did not provide delivery service previously (if the insured did provide  delivery but never bought the coverage, they are on their own, which is OK because they should have had the coverage

A Key Endorsement

Throughout this article, the fact has been highlighted that the unendorsed BAP does not extend protection to the employee when he/she is using his/her personal auto on behalf of the employer. This lack of employee   protection can be detrimental to the employee. As was previously discussed, the BAP insurer can subrogate against (seek recovery from) the employee if the BAP is required to pay to cover the business owner’s vicarious liability for the actions of the employee.

Whether the BAP carrier would want the PR storm that comes with this is irrelevant; they can do it, and if the loss is bad enough, they may. But there is a remedy.

To fix this gap and keep relations between the employer and employee intact, attach the CA 99 33 10 13 - Employees as Insureds  

endorsement. As the title suggests, the endorsement extends insured status to  employees when driving their personally owned vehicles for the benefit of the employer/insured. But this endorsement does NOT change the order of response.

Even when the CA 99 33 is attached, the employee’s PAP still responds as the primary coverage. The BAP remains excess. The

difference is this endorsement extends protection from the BAP to the employee on an excess basis. Further, as an insured, the carrier no longer has the ability to subrogate against the employee if the loss requires the BAP to respond as excess.

Always attach the CA 99 33 anytime an employee is using his or her personal auto on behalf of the employer, even in non-delivery situations such as are addressed in this article.

Takeaways

Keys to remember from this article:

• The PAP is always primary for an employee-owned auto;

• The public or livery conveyance exclusion isi ntended for those in common carrier type businesses, not food delivery for their employer;

• Don’t put it past an insurance carrier to try to  use the public or livery conveyance exclusion;

• An employer can be held vicariously liable for the actions of its employees, especially when the employee is using his/her personally-owned auto for the benefit of the employer;

• Because the employer can be held vicariously liable for the actions of the employee’s use of the employee-owned auto, the employe should carry relatively high PAP limits;

• Because the employer can be held vicariously liable for the actions of the employee’s use of the employee-owned auto, the employe should have a BAP; and

• Because there is no coverage for the employee in the unendorsed BAP, the CA 99 33 should be attached.

2020 has become the year of the remote worker, courtesy of the coronavirus pandemic. Is your business one of the many that has transitioned to remote operations? Have you considered how that change affects your insurance liabilities as a business owner?

Your Trusted Choice Independent Insurance Agent® can help you reassess your risk picture. Managing a remote workforce may be new to you, but independent agents have rich expertise in helping business owners manage risk — whether employees work from home or on-site. And because they represent multiple insurance companies, Trusted Choice agents can offer you and your business customized coverage based on your unique and changing needs.

In addition, your Trusted Choice agent can offer you resources and advice for developing your company’s remote work program. It should address, at a minimum:

1. Safety guidelines for a home office setup.

2. Designated work, break, and lunch times.

3. Safety training.

4. Physical inspections of remote workers’ home offices.

5. The workers’ compensation rules for your state as they apply to remote workers.

Here are a few insurance questions your Trusted Choice agent can help you answer:

Does my commercial general liability policy cover remote employees?

As part of your business insurance package, general liability protects your business against financial loss resulting from bodily injury, advertising injury, and property damage caused by your business or employees. Your Trusted Choice agent can review your policy to be sure that you are still adequately covered while employing remote workers.

If your remote employee must meet business clients from home, it will be your commercial general liability policy that must cover any injury, not the employee’s homeowners insurance. Your agent may suggest additional coverages such as management liability insurance to protect you and your workers from this and other risks not covered by your commercial general liability policy.

Business property insurance protects the physical location of your business and any tools, equipment and inventory. Your business property policy may exclude or limit the coverage for property that is not located at your business premises. Your agent can help you determine if you need additional coverage for property used off-premises by remote workers.

An employee’s own homeowners policy usually will not cover the loss of business-owned equipment that is damaged or stolen in their home.

Are my remote workers covered by the workers’ compensation insurance my company purchases?

  It is incumbent on you as an employer to ensure a safe working environment for your employees — whether they work at your business location or from their homes. In general, your workers’ compensation insurance covers all of your workers for illness or injury arising out of or in the course of employment — no matter where they physically work.

However, ensuring a safe working environment for remote workers increases your responsibilities as an employer.

In addition, it is more difficult for a remote worker to demonstrate that an injury or illness “arises out of” or occurs “in the course of” employment — your telecommuting policies and procedures will be of critical importance. Will my cyber liability insurance cover remote employees? The answer to that question is not simple because cyber policies vary greatly and may contain exclusions that would affect remote workers. And a remote worker using a public or a poorly secured home network could put your entire business at risk and expose your customers’ private information. Your Trusted Choice agent can help you be sure you have appropriate cyber liability coverage. In addition, you must ensure that every device an employee uses is protected from cyber breaches. First, require that employees use only your business-owned devices for work; second, set every employee up with a secure connection from their home office to your business network. You may have to engage the help of an IT specialist, but the investment pales beside the potential costs of a cyberattack.

Let Trusted Choice help you keep your business and employees safe … anywhere they work.

For more help with your telecommuters, consult these articles:

Inspiring Productivity and Connection with Remote Workers

Ways to Keep Remote Workers Connected and Engaged 

By: WAHVE Work at Home Vintage Experts 

This article was originally featured in our July Wisconsin Independent Agent Magazine. Click here to read the full issue. 

Today’s employees Zoom, Skype, Jabber, FaceTime, GoToMeetings and chat in Google Hangouts and Webexes. When they’re not videoconferencing, they’re emailing, collaborating in Microsoft Teams, and instant chatting on Slack. They’ve already got the tech tools they need to make it easy and more convenient to work remotely, but do you have the right management tools in place to keep your remote employees engaged?

There’s no doubt that hiring remote employees can benefit your insurance business by bringing in critical skills that you don’t have or can’t easily find. Remote workers can be a boon to recruiting, productivity, business continuity, and improved customer service. But relying on a traditional management style to keep a dispersed workforce motivated and moving forward won’t cut it.

So, what are the best ways to keep employees you rarely see motivated? 

Build a Virtual Water Cooler

The cornerstone to keeping remote employees engaged is proactive communication. When you can’t simply stop by an employee’s desk to chat, grab a cup of coffee, or 

physically sit with them in a conference room, it’s important to make a concentrated effort to make time for casual conversation. It’s not enough to schedule a few

one-hour meetings per week. Communication with remote employees should be fluid, spontaneous and regular. Create a virtual water cooler by continually chatting with people to find out what they did during the weekend, how their family is doing, and what their plans are for time away from work. 

Establish Some “WAHVY Gravy”

When employees are out of sight, it can be easy to unintentionally exclude them, making them feel isolated. And when people feel isolated and not a part of the work

community, productivity suffers.

Go beyond relying on virtual meetings to establish community. If you have an intranet, create a space where people can share news, tips, or pictures of their pets. Many companies dedicate specific Slack channels to support socializing.  Others use virtual coffee breaks, book clubs, TED talks, or online learning courses that everyone participates in to encourage a deeper sense of community.

Another strategy is to incorporate a few minutes for team members to share something personal at the end of meetings. At WAHVE, we call this “WAHVY gravy.” We ask people to share something that’s important to them – whether it be pictures of their artwork, hobbies, or stories about recent vacations. Another idea is to ask employees to share an “ah ha” or an “appreciation” – something they recently learned or someone they’d like to acknowledge. The important thing is to make it fun and personal. This changes how people interact with each other at a human level and builds interest and empathy for one another.

Don’t Forget Face Time

Despite all of the fancy tech tools, there’s still no substitute for face time. When you’re managing a remote team, no matter the size, it’s important to bring the entire team together when you can. Doing this shows on site and remote workers how much you appreciate them, and it builds connection. At WAHVE, we bring our staff together

bi-annually, and we find that these events are invaluable to help the team bond, strengthen our culture, and share goals and future direction with everyone physically present.  

According to an analysis by FlexJobs and Global Workplace Analytics, remote work has grown 44% over the last five years and 91% over the past 10 years. It’s a trend that will likely continue to rise, so there’s no time like the present to adapt your management style to support remote workers, and in turn, the success of your business.

By: Bernard Rosauer, President of Wisconsin Compensation Rating Bureau

By this time many of us have attended national webinars, read national periodicals containing articles regarding Covid-19 and the exposure it may bring to the workers’ compensation industry.

Logic 101 teaches us a basic flaw in logic is the hasty generalization. The problem with consuming national information and applying it to one state is obvious. In addition, early to market national predictions based on inadequate data often wastes time and  miss the mark… by a lot. 

In some cases, particularly in specific states where laws are changed or enacted quickly , generalizations regarding the specific state are reasonable and necessary. Otherwise, unless each state is looked at with a critical eye and a gathering of state specific data, reports with a wide span are less useful if not misleading when applied to one state.

Here’s Wisconsin specific information you can rely on.

Wisconsin Specific Workers Compensation Impact of Covid-19

Wisconsin Compensation Rating Bureaus transition from office to home.

Your Bureau’s transition was seamless. There was no change in service availability and work was processed on time despite the many Covid-19 related phone calls that added to our workload.  

As president of the organization, I am proud of the entire staff, the flexibility and extra hours worked to ensure availability, and timely decision-making for

members, employers, agents and all other stakeholders. Our Rating Committee, Governing Board and all employees really did step up and I acknowledge all of them and their communal effort.

Claims Received

The WCRB does not collect real time data regarding claims.  Still, we believe it is important to understand, at least anecdotally, what volume and types of Covid-19 claims are being presented by first responders, healthcare workers and other workers deemed essential.  A hasty generalization made by using countrywide statistics could have led us in the wrong direction.  With national reports predicting up to a 50% decrease in overall claims activity (because of the unemployment plunge) through April 2020, Wisconsin has seen a decrease of approximately 25% in new claims opened.

WCRB is also tracking claims received in the first responder worker categories  defined by the statutory changes in Wisconsin Workers Compensation Act that allow presumptive but rebuttable claims be honored by a defined list of first responders and healthcare workers. This will help support estimates for rating purposes at a later date.   

At a high level and at this period of time, these Covid-19 exposures are not of such a great volume that an overall impact on rate impact will be great. Of those reported the vast majority, approximately 95%, had treatment consisting of diagnosis then staying home and waiting for the illness to pass.

‘Furloughed but Paid” Workers

With reports of employers paying workers out of goodwill while those workers were furloughed, something needed to be done to remove the payroll for ‘Furloughed but Paid’ workers from eventually being used in rating the risk.

Wisconsin became the first state in the country to construct a filing with rules that granted employers relief knowing that they would not be charged a rate for their goodwill.  The Bureau developed unit statistical code 0012 which was approved by Wisconsin’s OCI in less than a week (that sounds easier than it was.)  NCCI and other rating bureaus subsequently changed their filings to include 0012 or another code that enabled employers to place payroll for workers who are not working and not apply a rate toward that payroll.

Covid-19 and Worker’s Compensation in Wisconsin Updates and FAQ’s

For a full list of FAQ’s regarding Covid-19 in Wisconsin, visit www.WCRB.org and look for the ‘Click Here’ link for Covid-19 Updates and FAQ’s.  

Here are some of the MOST frequently asked questions:

Who is considered a paid furloughed employee for WI worker’s compensation insurance purposes? 

By definition, a paid furloughed employee is one who is still being paid where they have been given a temporary layoff, an involuntary leave or another modification of normal working hours for a specified duration. This is for payments made by the employer during the paid furloughed time under the Governmental Emergency Order regardless of when it was earned.

(It is important to understand that Paid Furloughed Workers code 0012 can only be used when absolutely no work is being performed for the employer. In addition, it imperative that the employer keep clear and irrefutable records when reporting employees as paid while on furlough.)

What if Code 0012 is used fraudulently by an employer to falsely lower WC premiums?

Code 0012 can ONLY be used if an emergency order is issued by a governmental official. Code 0012 is defined as: Paid Furloughed Workers During A Governmental Emergency Order Impacting Employment. If a governmental emergency order is not in effect, code 0012 cannot be used. During a declared government emergency order, improper use of this code or the use of false or misleading documentation in support of

reallocation of payroll to this code is a violation of the law and may subject the employer/owners to fines, penalties and/or imprisonment for fraud.

If a paid furloughed employee continues to be paid by their employer, is their payroll excluded from the employer’s worker’s compensation insurance 

premium? 

If an employer continues to pay furloughed employees their normal wages and the employer keeps separate, accurate and verifiable records, the payroll will not be included for the basis of premium.

How is the payroll to be split when an employee works part of a day and is furloughed part of the day?

If the employee is performing work duties for any portion of the day, no division of payroll is acceptable.

Will COVID-19 claims be included in my future experience rating modifications?

Wisconsin procedures will be consistent with those previously applied to other Extraordinary Loss Event catastrophe codes. Valid claims coded with catastrophe code 12 and reported to Wisconsin will be excluded from experience rating calculations for any employer(s) incurring one or more such claims.