Risk Management Service Agency


Published on Aug 18, 2020

RMSA COVID-19 global pandemic impacts and considerations

Contact: RMSA

RMSA has received a number of questions from our members about COVID-19, how members should respond to the risk exposure, and how RMSA's various coverages will or won't apply to claims that result from exposure to the virus. While every situation has different facts and must be evaluated individually, we'd like to provide you with some general information on how RMSA's coverages are likely to respond to virus-related claims.

Possible claim?

First and foremost and regardless of whether you believe you have coverage or not, if you think you might have a claim, please submit it to rmsaclaims@awcnet.org so we can determine whether coverage applies.

 

Your RMSA coverage


umbrella-icon-75Liability coverage

RMSA provides $15 million in general/auto, stop gap employers', errors and omissions, and employment practices liability coverages.

General liability

The RMSA Coverage Agreement covers your "legal liability" for "damages" which you may become obligated to pay because of "bodily injury" or "property damage" caused by an "occurrence." This coverage is intended to protect you when a third party brings a claim or suit against you for monetary damages alleging the negligent actions of your entity or one of your employees as the direct, proximate cause of their injury, illness, or property damage.

Coverage is likely
There is no specific exclusion for a claim that alleges your negligence causing someone to contract COVID-19; therefore, these claims would likely be covered.

Errors and omissions liability

The RMSA coverage agreement covers your "legal liability" for "damages" which you may become obligated to pay because of your "wrongful acts." This coverage is intended to protect you when a third party brings a claim or suit against you for monetary damages alleging the negligent decisions or inactions taken by your entity or one of your employees as the direct, proximate cause of their injury, illness, property damage, or other economic loss.

Coverage is likely
Again, there is no specific exclusion for a claim that alleges your negligence causing someone to contract COVID-19; therefore, these claims would likely be covered.

Employment practices liability

The RMSA coverage agreement covers your "legal liability" for "damages" which you may become obligated to pay as a result of "sexual harassment", "discrimination", "wrongful employment termination", invasion of privacy, libel, slander, or defamation of character, arising out of a "wrongful employment practice." RMSA's coverage extends a duty to defend you but does not obligate the pool to indemnify you for the cost of back pay, future pay, or lost wages or the actual cost of a disability benefit.

Coverage is likely
This coverage is intended to protect you when an employee sues you for any of the above employment actions. An employee claiming your actions related to the COVID-19 pandemic caused them to be discriminated against, harassed, retaliated against, terminated, etc. would not be excluded from coverage.

Property coverage

RMSA provides you with full replacement cost coverage for your buildings and their contents and actual cash value for your vehicles and equipment. RMSA's property policy also covers you for "business income", "business interruption", or "extra expense" losses or damages, such as no longer being able to collect revenues like fees for facilities rentals, rent from tenants in member-owned buildings, utility payments, or sales tax revenues.

For these types of losses; however, the first requirement is that there is an actual occurrence that caused physical damage to your buildings or their contents before it can be determined if there was then a related interruption to business or extra expense incurred. Without that, the extra expense and business interruption coverage may not be triggered.

Excluded from coverage
RMSA's property policy does not provide coverage for loss or damage caused directly or indirectly by "pollutants or contaminants." Viruses are included in the definition of "pollutants or contaminants"; therefore, property losses or damages related to COVID-19 would not be covered.

Pollution coverage

RMSA provides you with $2 million in first-party and third-party pollution coverage. RMSA's pollution policy covers you for losses resulting from "pollution conditions" or "indoor environmental conditions."

Excluded from coverage
While viruses are not excluded entirely from "indoor environmental conditions," viruses that are a result of "communicability through human-to-human or bodily fluid contact" are excluded; therefore, pollution losses or damages related to COVID-19, including remediation costs (for example, extra expenses related to decontaminating your buildings and other assets) would likely not be covered.

Disclaimer

The information provided above is not an exhaustive list of all possible coverages that may be impacted by the COVID-19 pandemic, nor is it intended to be a full and complete determination of coverage or to serve as a confirmation or denial of coverage for any specific claim situation. Whether or not coverage applies will relate to the specific set of facts of each individual claim and how that relates to the applicable coverage agreement or policy.

Please report all potential or actual claims for injury or damage to others, others' property, or to your own property, to rmsaclaims@awcnet.org as soon as practicable.

 

Online resources


training-icon-75Training resources

RMSA has expanded training resources for both pandemics and cyber risk at RMSA-U. Consider accessing these online classes:

  • Pandemic planning – the planning organization
  • Pandemic planning – elements of the plan
  • Cybersecurity threats to public entities
  • Computer security basics
  • Protection from ransomware and phishing attacks

There is also a separate topic bundle called COVID19: Response to mitigate risk with coronavirus-related courses, policies, and videos to help agencies safely operate, effectively respond to calls for service, and navigate during this national emergency.


LexipolLogoWebFREE Lexipol resources

Lexipol is making a COVID-19 microsite available to public safety and local government entities at no cost. The purpose of the microsite is to help local governments address the unprecedented challenges posed by the COVID-19 pandemic and can be accessed by individuals and departments whether they are subscribed to Lexipol academies or not.

 

Risk control


resources-icon-75Exposure areas of concern and resources

This section includes information on the exposure areas related to RMSA coverages that are most likely to be impacted by the COVID-19 Pandemic, as well as resources to help you reduce your risk. For general federal, state, and local COVID-19 resources please refer to the AWC COVID-19 resources page.

NEW! Managing a positive COVID-19 case in your workplace

Use these five steps to manage a COVID-19 case in your workplace.

  1. Immediately report the confirmed case to local public health officials.
  2. Conduct contact tracing with employees that have been in close contact with the confirmed individual.
  3. Prepare a communications plan for staff and the public.
  4. Clean and disinvect areas that may have been contaminated or contacted by confirmed positive individual(s).
  5. Ensure that the employee(s) have a leave plan in place.

Get more details on how to accomplish the five steps above.

RMSA recommends requiring your employees and visitors complete a COVID-19 health questionnaire before being admitted to the workplace. Use RMSA’s sample COVID-19 health screening template as a place to start.


Financial controls – key takeaways

AWC and the State Auditor's Office (SAO) hosted a webinar on COVID-19 & your small city financial controls that included some excellent guidance for small cities to navigate the new financial landscape created by the pandemic. The webinar was well worth the time, but for those that missed it, here are RMSA's key takeaways.

Financial reports filing deadline

The governor's Proclamation 20.34 provided a 30-day extension for filing your financial reports. Further extension will require legislative action, the SAO hopes that by April 30 the legislature will confirm an extension to June 30.

Financial audit deadline

The SAO has approved a financial audit deadline extension for up to 6 months. You do not have to file for the extension, but you must document the reason you needed it.

Document, document, document!

For any changes you make to your financial controls, processes, or procedures, make sure you take meticulous notes to document what you did, who you talked to for guidance and when, and what guidance you received. You may not be audited on the decisions you make today for 2-3 more years! Leaving things up to memory puts you at risk when it comes time to substantiate those decisions to the auditor.

Timely deposits
The RCW requires daily deposits unless a Treasurer grants an exception. Your own Treasurer can grant this exception, but the RCW then requires weekly deposits. The SAO recommends you discuss options with your bank and keep internal controls in place to safeguard funds until you can deposit them – DOCUMENT!

Utility payment deferral
Refer to your policy, your attorney, and MRSC. The Governor has asked utilities to work with customers and defer payments and waive late fees if possible – DOCUMENT!

Internal controls – segregating duties with reduced/remote staff
SAO suggests implementing a monitoring system if you can't fully segregate duties – DOCUMENT!

COVID-19 audit impacts
Collaborate with the SAO on how audit work should continue; contact your local audit team to discuss – DOCUMENT!

Coding for COVID-19 expenses
There is no separate BARS code for COVID-19. The SAO suggests using past experience with other emergency situations to determine your current actions – DOCUMENT!

Procurement requirements

You MUST have an emergency proclamation to speed up your procurement process! BEWARE: An emergency proclamation doesn't waive all procurement requirements. Expenditure must be explicitly necessary and directly related to the pandemic.

OPMA – public comment by email in advance?

The Open Public Meetings Act (OPMA) only requires the public be able to attend and listen to your meeting; it is not a requirement that they be able to submit live questions – check with your legal counsel.

State Auditor's Office guidance

Further guidance from the SAO, MRSC, and the Attorney General have been compiled on the SAO's website. For direct SAO assistance, visit www.sao.wa.gov and click on the "contact us" button. Use the helpdesk feature under your client login and ensure you are getting timely notifications and alerts under "my subscriptions." Email the SAO directly at center@sao.wa.gov.


Volunteers

An area of potential exposure for members to be aware of is your use of volunteers. Some members have indicated they plan to use volunteers during the pandemic to deliver food or other critical supplies to at-risk constituents following the Governor's "Stay Home, Stay Safe" proclamation. If you do not report volunteer hours to Labor & Industries, you are not affording your volunteers coverage for bodily injury or illness through workers' compensation, therefore you may have exposure to being sued by those volunteers should they contract COVID-19 while working on your behalf.

RMSA will cover these claims, if filed; however, be sure to properly train your volunteers and follow CDC and DOH guidelines for proper hygiene and personal protective equipment for all volunteer workers. Be sure to carefully track names, dates, and duties of all volunteers you employ.

Refer to RMSA's volunteer manual for guidance.


open-government-icon-75Public Records Act (PRA)/Open Public Meetings Act (OPMA)

RMSA is proud to be the only municipal risk pool in the State providing you with discretionary defense coverage for violations of the PRA and OPMA. In light of the Governor's "Stay Home, Stay Safe" Proclamation and required or necessary adjustments to how you continue to comply with the PRA and OPMA, you may be at increased risk of inadvertent violations of these orders and thus future lawsuits.

Please refer to the AWC summary of the Governor's emergency proclamation impacting PRA and OPMA and the Attorney General's updated guidance on following OPMA rules during COVID-19.

Temporary Public Records Act changes – Key takeaways

  • Requirements to respond to a request for records within five days have been suspended.
  • Requirements to maintain office hours for in-person inspection or other business related to public records have been suspended.
  • Agencies must continue to otherwise comply with the PRA during the public health emergency.
  • RCW 42.56.520 details full PRA requirements.

For more information on PRA compliance contact Ask MRSC.

If you need assistance responding to a public records act request or require legal guidance, please contact rmsaclaims@awcnet.org.

Temporary Open Public Meetings Act changes – Key takeaways

  • Agencies are precluded from holding in-person meetings.
  • Agencies may only take "action" on matters that are either (1) necessary and routine, or (2) necessary to respond to the COVID-19 outbreak and the current public health emergency.
  • Members of the public must be given telephonic participation at a minimum; video meetings (Zoom, Skype, etc.) may not be used unless a telephonic way to hear the meeting is also provided.
  • Keep in mind Americans with Disabilities Act (ADA) accessibility requirements when choosing technologies for remote attendance.
  • RCW 42.30.020 details full OPMA requirements.

For more information on OPMA compliance contact Ask MRSC.

Public Records Act five-day letter waiver extended through May 31, with new exception

In a letter sent May 11, legislative leadership extended the statutory waiver of the Public Records Act (PRA) five-day letter requirement through May 31, 2020. The new extension of the PRA waiver does not apply to the five-day response requirements for public records requests received by an agency electronically. We expect the Attorney General's Office will update its guidance regarding the new exception. Please consult your legal counsel with any specific questions.


congregate-icon-75Employment practices

As members navigate delivering essential services while working remotely and having to apply new and different leave laws, we anticipate employment practices claims for things like discrimination, wrongful termination, and retaliation may increase. Use these resources to lower your risks.


Furloughs and layoffs

Many cities and towns have been able to avoid layoffs and furloughs so far. However, many of you may need to make some difficult decisions about whether to initiate layoffs or furloughs very soon. We hope you will find this information useful in navigating these decisions and hope to help prevent or reduce the risk of increased claims for things like discrimination, wrongful termination, and retaliation.

View AWC Trust's For Your Health newsletter to learn the difference between a furlough and layoff. At the bottom of the newsletter is a link to access sample furlough policies and separation agreement.

Returning furloughed/laid off employees to employment to avoid discrimination risks and claims

  • Do a thorough review and refresh on your regular policies/procedures. Develop new ones on workplace safety, social distancing, and hygiene protocols. Ensure you have proper supplies to allow your new rules to be followed.
  • Take a hard look at the criteria used to enact the layoff/furlough so that you can substantiate those decisions when you bring folks back and make sure you have good documentation BEFORE you bring people back. Look at the populations being affected to make sure your actions are not or cannot be interpreted to be discriminatory.
  • Make sure employees continuing to work remotely have proper equipment and training. There may be increased risks of perceived discrimination against employees with disabilities or other technological deficiencies if you do not accommodate them. The EEOC is urging accommodation from employers even if the accommodation is very inconvenient for the employer. This may cause difficulty for employers in approving or denying future or continued accommodations, i.e. if you accommodate on a temporary basis, can you substantiate why you can't prolong that accommodation or accommodate the employee on a permanent basis?
  • DOL's guidance on furloughs and temporary business closures

FFCRA, FMLA, PTO, and PSL
The Families First Coronavirus Response Act (FFCRA) was effective on April 1. The EEOC and CDC have published FAQs to assist businesses with critical decisions and many States have enacted local laws with new protections for employers.

May an employer require that paid time off (PTO) and Family Medical Leave Act (FMLA) run concurrently? What about PTO and paid sick leave (PSL)?

  • Yes. The employer has the right to require PTO and FMLA run concurrently if the employee qualifies for both.
  • No. The employer can't require PTO and PSL to run concurrently.

View L&I's paid sick leave and coronavirus (COVID-19) common questions

Worker protections for the "new normal"

Likely your HR manual will need some significant revisions going forward; here are some things to consider:

Returning to the office
Develop policies for ensuring safety, sanitation, and social distancing. Develop policies for how you communicate information about possible infection without violating HIPAA. Do you need to run new MVRs, drug tests, etc. for returning employees?

Ongoing remote work
Develop policies for etiquette, hygiene, dress code, and various other protocols specific to remote work. Review remote work templates and information on MRSC's website.

Consider including the following in your remote work policies:

  • References to any human resources policies, work guidelines, and/or additional requirements employees are expected to follow.
  • Agreed upon schedule of telework: include days and hours.
  • A formal agreement with employees.
  • Expectations of availability during core business hours, including how the employee will be expected to communicate, and how they will conduct meetings with other employees and clients (onsite or via phone/video?).
  • Requirements for daycare or dependent care during working hours.
  • Who has the right to suspend or end a telecommuting agreement.

Business travel
We expect employees may resist business travel for health reasons in the future. Thoroughly review your business travel policies to determine if your policies around travel expectations need to change. You may also need to develop policies specific to hygiene rules for business travel such as social distancing with two employees in a car together, sanitation requirements for employees driving fleet vehicles, etc.


Employment risk and Families First Coronavirus Response Act (FFCRA)

Key takeaways

  • Agencies may not require employees to provide a doctor's note or other documentation from a healthcare provider (other than the provider's name) or a school notice to request leave under the FFCRA.
  • Notifying employees about potential COVID-19 exposure must be general (for example, identifying a department versus a specific employee) to avoid potential HIPAA violations.
  • Only answer questions with what you know – refer to State and Federal resources or consult an employment attorney before opining on questions for which you do not have a clear answer.
  • Document all correspondence with employees and be sure to develop protocols for retentions that are safe and do not violate HIPPA. Date stamp your advice – guidance is changing on a daily basis and advice may need to be modified as things change.
  • Leverage your resources – you don't need to be the "Coronavirus expert." Bookmark resources to refer to questions.
  • Businesses deemed "essential" may not be required to grant employee requests to use FFCRA leave. Please consult with an employment attorney before denying an employee's request for leave and refer to FFCRA Employee paid leave rights and FFCRA Employer paid leave requirements for more information.
  • Get a copy of the employee rights FFCRA poster you should be displaying in your common work areas.

Other resources

MRSC
MRSC provides information on local government telecommuting policies in Washington State, including links to regulations, examples, and recommended resources.

EnquironLogoEnquiron
Refer to HR/COVID-19 resources available exclusively to RMSA members through our partner Enquiron, such as this State/local public employer COVID-19 FAQ sheet or this article on Emergency preparedness in the workplace – Guide to prepare for COVID-19.

Prelitigation assistance
Take advantage of RMSA's prelitigation program by contacting rmsaclaims@awcnet.org for assistance addressing an issue you think could result in a future claim.

 


Cyber risk

Unfortunately, in times of strife, crime often rises and we are already seeing an increase in cyber-crimes such as phishing and robocalling. Be extra diligent at this time to avoid clicking on unknown or unsecure links or providing any kind of confidential information or monies to unconfirmed sources.

Cyber resources

Cyber resources are available to RMSA members through its exclusive cyber partners, Enquiron and eRisk Hub. eRisk Hub has published a variety of articles related to COVID-19, and are featured at the top of the page. We encourage members to review these resources. An ounce of prevention now...Access to eRisk Hub requires a code; contact rmsa@awcnet.org for more information.

If you have specific questions or would like cyber assistance, consider calling RMSA's new cyber expert hotline.

Cyber fraud themes
Take a look at some cyber fraud themes out there right now courtesy of AWC's auditors, Clark Nuber.

Key takeaways

  • Be very cautious of emails that: 1) sound like they are talking about special government assistance programs related to Coronavirus; 2) mention some legitimate news story, or a bill passing congress, or a school closing, to try to entice you to click on a link; or 3) link to some website where you need to register to receive a state government, federal government, or insurance benefit.
  • Be skeptical of call claiming you need to do something to keep access to your VPN, O365 Email, wireless internet access, etc. or that they've detected suspicious activity on your account that requires investigation.
  • When in doubt, call your provider or the company the caller is claiming to work for directly to confirm if the outreach actually came from them.
  • If you receive a suspicious email or phone call: 1) DO warn other staff and elected officials about it; 2) DO NOT forward a suspicious email to others, unless it is to your local IT staff to scan for phishing or viruses.

Cyber resources are available to RMSA members through its exclusive cyber partners, Enquiron and eRisk Hub.

If you have questions or would like cyber assistance, consider calling RMSA's new cyber expert hotline.

Check out these Enquiron articles on Resources you need to support remote work and Cyber risk and a remote workforce.

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