Why Every Contractor Should Require Workers Comp Insurance

Posted on June 15, 2020June 15, 2020 by BGESGroup

Two construction workers died on the job every day in 2013, according to the U.S. Occupational Safety and Health Administration. One out of every 25 construction workers got hurt on the job that year. Workers in this industry need the protection of Workers’ Compensation benefits more than most.

Most states require employers to carry Workers’ Compensation insurance, but not in all cases. Many states exempt one-person operations from the requirement, for example. Regardless, it is a good practice for project owners and general contractors who hire subcontractors to require the subs to carry this insurance, whether the law requires it or not.

A typical construction project involves three types of entities: The owner who is paying to have the project done; a general contractor or independent contractor whom the owner hires to do the work; and subcontractors whom the GC hires to do portions of the work. The relationships between these entities and their employees differ.

While most states require employers to provide Workers’ Compensation benefits to employees, their laws also define who exactly is an employee. If someone is working on my property, but the law does not consider that person to be my employee, then I do not owe that person Workers’ Compensation benefits. States use several criteria to determine whether two parties are in an employer-employee relationship. These are similar to the criteria the Internal Revenue Service uses, such as control over when and how work is performed.

Typically, state regulators do not find a construction worker to be an employee of a project owner. The same cannot be said about independent contractors and employees of subs, however. Some sole proprietor subcontractors who suffer worksite injuries claim Workers’ Compensation benefits under the policies of the contractors who hired them. Often, state Workers’ Compensation law judges rule that these individuals were acting as employees of the hiring contractors, not independent contractors.

In addition, many state laws require an independent contractor who hires a sub to provide Workers’ Compensation benefits to the sub’s employees if the sub fails to obtain insurance. The injured subs or their employees end up collecting benefits even though that was never the intention of the hiring contractors. Consequently, insurance companies can and do charge independent contractors additional premiums when they find that uninsured subs have worked for them.

In a worse case scenario, both the independent contractor and the sub may fail to buy Workers’ Compensation insurance. Leaving aside the legal problems that will result for the employers, this leaves injured workers without sources of the benefits to which they are entitled. Their logical recourse is to sue the project owner. They may seek damages for an alleged failure to maintain a safe worksite or for negligence in the hiring and supervision of contractors. Since the project owners are not the employers of these injured workers, their own Workers’ Compensation policies will not help. Rather, they will have to seek legal defense and the payment of any awards from their liability insurance companies.

For these reasons, project owners should insist and verify that all contractors working on the job, including subs, carry their own Workers’ Compensation insurance. Independent contractors should do likewise with the subs they hire. Project owners may want to supplement their protection by making the independent contractors responsible for verifying that the subs have insurance, and by requiring the independents to hold the owners harmless from any lawsuits resulting from workplace injuries.

Construction is dangerous work. Every contractor setting foot on a job site should carry its own Workers’ Compensation coverage, whether the law requires it to or not.

BGES Group’s office, located in Larchmont, NY is a full service insurance agency offering, Property, Liability, Umbrella Liability, Business Auto, Bid & Performance Bonds, Inland Marine, Worker’s Compensation, New York State Disability, Group Health, Life insurance, Personal lines and Identity Theft.

BGES Group are Worker’s Compensation Specialists for the States of New York, New Jersey and Connecticut – Issues we address: 1) Lowering pricing – we have specialty programs that can save you up to 40%; 2) Finding a new company; 3) Being cancelled or non renewed; 4) Audit disputes; 5) Company creating fictitious payroll at audit time; 6) Lowering high experience modifications factors; 7) Misclassification of payrolls; 8) Lowering or eliminating renewal deposits; 9) Getting coverage when you’ve been without for a few months; 10) Covering multiple states under one policy; 11) Eliminating 10% service or policy fees; 12) Timely issuance of certificates; 13) Always being able to get someone on the phone or by email when you need to.

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Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

What Is a Workers Compensation Rating and Why Does It Matter?

Posted on June 15, 2020June 15, 2020 by BGESGroup

Most business owners and executives understand the value of workers compensation insurance not just to protect the worker, but to protect the company as well. Fewer, however, are aware of the mechanics of how premiums are arrived at, and how their own company’s safety track record figures into their rating. Understanding the process, however, may well enable you to qualify for lower premiums down the road, saving your business money and making you more competitive.

Industry underwriters set workers compensation premiums using a process similar to how most companies price group health insurance: They look at the actual claims experience for similar workers in your area, and if there is a history of claims, at your company specifically. Where there is insufficient local claims experience to look at, underwriters turn to the National Council on Compensation Insurance, a clearing house of workers injury and compensation data.

Generally, underwriters will take your payroll and multiply it by an average claim factor for that type of worker. This produces a baseline average of the total number of expected claims, which they subdivide as claims per $100,000 of payroll, claims per year, or claims per time unit. The frequency of claims is considered to be a close proxy for the safety culture of the individual business. They then account for the average severity of claims for that type of worker in your industry and combine the two to arrive at a baseline prediction for expected losses.

Underwriters must then try to assess your business and answer the following question: Given the policies and procedures in place at your business and your claims history, is your company likely to produce losses that are higher than the industry baseline or lower?

Over time, underwriters have discovered that the most likely future claims predictor is a past history of claims at your company. Therefore, to save money on workers compensation premiums, it behooves the company to invest aggressively in preserving the safety of the work environment, both in terms of resources and management focus.

Your workers compensation agent and underwriting team will assign your company an insurance rating, with 1 deemed equal to the average claims experience in your industry for the area.

Any rating higher than 1 indicates a worse-than-average risk for workers compensation claims. If your rating comes out higher than 1, you may be able to qualify for lower rates in future years by reviewing your safety program and the types of losses your company has incurred. Identify any patterns and refcurring themes. You may benefit from bringing in a risk management consultant for an outside set of eyeballs. Some investment in equipment or improved training may be needed, or you may need to be more vigilant for workers compensation fraud in a few cases.

Best Practices

In the long run, your safety record is a reflection of your overall safety culture. That’s not something limited to the rank and file worker and shop foremen, though. The most important link in the safety culture chain is at the top.

Invest in training your workers in all aspects of safety relevant for their jobs.
Appoint a senior manager with clout to monitor your safety and OSHA compliance, and empower him or her to enforce it throughout the company.
Empower any worker to halt work activities if he or she becomes aware of an unsafe work condition, until that condition can be corrected.

Everyone is part of your workplace safety culture – but senior management is the most important link in the chain, because management sets the tone throughout the organization.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

Preparing for a Workers’ Compensation Audit

Posted on June 6, 2020June 6, 2020 by BGESGroup

Just the mention of a workers’ compensation audit can stir up the butterflies in your stomach and add a serious dose of stress to your existence.

But, if you are scheduled for an audit, there is no need to dread it. A small amount of preparation and common sense can save you a lot of aggravation and money.

Timing
Devoting a few hours of effort now can save you a lot of time in the future. Give your full attention to the auditor and remain with them throughout the entire process. The process may take a couple of hours to complete, so make sure that the time and date of the scheduled audit are convenient for you. Call to reschedule the audit if it has been scheduled at an inopportune time.

Documentation

As soon as you learn about the audit, begin to collect and organize:

Payroll records,
Overtime payroll records,
Classification divisions, and
Insurance certificates.

This should give you plenty of time to compose a summary of each, which will help you to better communicate important data during the audit process. Information that is well organized will also expedite the process. If you can reconcile your calculations to payroll records, such as W2s and payroll stubs, the auditor might be more comfortable trusting your data.

You will also want to make any needed adjustment to payrolls; for example, subtracting bonus pay from overtime pay.

If applicable, you will need to apply the maximum and minimum payrolls to the calculations. This part may take a little research, since the minimum and maximum will vary based on state, career, and even among sole proprietors, partners and executive officers.

Classification and subcontractors

Before the audit, review the different employee job classifications and make sure that each person is correctly classified.

This is a key element to ensure that the audit flows smoothly. If there’s any question about how to classify an employee, call us. The auditor is most likely going to ask you about the classification and job duties for multiple different employees, so be prepared and armed with knowledge.

One last important preparation concerns subcontractors. Payments issued to subcontractors can go against your workers’ compensation in the event that the subcontractor did not have a certificate of workers’ compensation.

You can get a copy of the certificate, but make sure that it is current and shows coverage during the time the subcontractor worked for you.

D-day

Once the audit arrives, you’ll be glad that you took a little time collecting, organizing and summarizing your information. You will also find that the auditor is not a nemesis, especially when you provide honest answers and organized paperwork.

At the conclusion of the audit, ask the auditor for the audit worksheet. Then ask us to review the accuracy of the final audit.

You have a legal right to ask for a corrected audit anytime you think there were any errors. If any overpayment was made under the last three preceding audits, you also have a legal right to recover it.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

OSHA Asks Employers to Investigate Worker COVID-19 Claims

Posted on June 6, 2020June 6, 2020 by BGESGroup

COVID-19 and workplace safety has been a moving target for OSHA and it has released a number of advisories, including one in March that said new cases were recordable events and then another one in mid-April saying employers are not required to report new cases among employees.

But in May OSHA issued new guidance, once again asking employers to investigate COVID-19 cases among their workers and report them to the agency for cases they deem as having been contracted in the workplace.

The guidance recommends that employers investigate the genesis of all COVID-19 cases among employees, which could be a significant burden on businesses as discerning where exactly someone contracted the coronavirus is difficult for people who are not medical professionals.

Under the revised enforcement policy, employers must “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not contracted in the workplace.

OSHA said it would not expect employers, especially small employers, to undertake extensive medical inquiries of workers, given employee privacy concerns and most employers’ lack of expertise in this area.

It will be sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, to:

Ask the employee how they believe they contracted the COVID-19 illness;
While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the illness; and
Review the employee’s work environment for potential COVID-19 exposure.

OSHA also recommends that the employer look for other employees who may have been exposed to the coronavirus at work, particularly if they work in close proximity to a co-worker who later tests positive.

Only COVID-19 claims that were determined to have come from the workplace and required hospitalization or days away from work need to be recorded, according to the guidance.

The guidance also states that if multiple employees in a particular business unit test positive for COVID-19, the assumption is that these coronavirus cases are work-related.

What to look for

When investigating cases, the employer should look for evidence that may more readily point to a case or cases having been contracted at work, such as:

COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together, and there is no alternative explanation.
A COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19, and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if their job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission, and there is no alternative explanation.
A COVID-19 illness is likely not work-related if the individual is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public.
An employee’s COVID-19 illness is likely not work-related if they closely associate with someone outside the workplace and who has COVID-19.

The takeaway

The new guidance is a lot to swallow, particularly as many employers do not have the expertise to conduct illness investigations.

OSHA stresses that it doesn’t expect perfection, but that it does expect employers with more than 10 employees to conduct investigations as prescribed above, particularly interviewing the employee and investigating if others who work with them also contracted COVID-19.

Given the nature of the disease and the ubiquity of community spread, however, in many instances it will be difficult to determine whether a COVID-19 illness is work-related, especially when an employee has potentially been exposed both in and outside the workplace.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

What Business Insurance Policies Cover Rioting, Looting

Posted on June 4, 2020June 4, 2020 by BGESGroup

As protests around the country descended into rioting and civil unrest, many businesses that have been looted, or seen their shops damaged or completely destroyed, will obviously be turning to their insurance to file a claim.

While many companies were unsuccessful in filing business interruption claims for the COVID-19 crisis, claims for damage and theft from rioting and looting are more likely to be paid. A number of coverages will come into play depending on the damage and lost income a business suffers at the hands of rioters, vandals and looters.

Property damage

Standard commercial property policies cover damage to a business property caused by fire, explosion, riot or civil commotion, vandalism or malicious mischief. This would include coverage to the structure of the business, as well as any inventory, fixtures and other contents. Business owner’s policies also include this risk.

The business personal property coverage portion of the policy would cover damage and theft if rioters break into a real estate office, for example, and steal computers, burn furniture and destroy office equipment. That said, the damage would be subject to limits (specific or blanket), as well as any deductibles required by the policy.

Commercial vehicle damage

Automobiles are covered under the optional comprehensive portion of a commercial auto policy, which you should have for all your vehicles. This will pay for damage to the vehicle and its contents caused by fire, falling objects, vandalism or rioting.

Comprehensive coverage will cover the gamut and will pay you if a vehicle is:

Stolen,
Damaged, or
Destroyed (for example, burned).

One of the most common damages to vehicles during riots is broken windshields, which you can usually get covered with an optional glass coverage rider.

Business interruption coverage

Companies that are forced to close as a result of riot and looting damage may have coverage for business interruption under a business property policy.

The policy may also cover lost income because a business had to close after riots. It would often cover dependent properties or have contingent business extensions of coverage. Also, coverage can apply if a business suffers a loss of income because of curfews or if authorities bar access to a property.

Coverage is typically triggered if there is direct physical damage to the premises.

You should note that many policies require a 72-hour waiting period before a policyholder can begin making a claim. That’s because the first three days of business shutdown, access constraints or limited hours of operation because of a civil authority action are often excluded from coverage.

There may also be a limit to the claim period. A standard limit is up to three weeks of losses.

Filing a claim

When filing a claim, read your policy in its entirety to determine how to best present it. It’s important to understand the policy’s limits and deductibles before spending time documenting losses that may not be covered.

If you are going to file a claim, document all damage. You should have receipts for all your inventory and fixtures. Here’s what you should do:

Take photos of all damage.
Contact your agent and file a claim immediately.
Clean up to protect your building, but do not make major repairs until you talk to the insurance company.
Keep receipts for any remediation work.

If you’re going to file a business interruption insurance claim, you will need:

Pre-riot financial statements and income tax returns.
Post-riot business records.
Copies of current utility bills, employee wage and benefit statements, and other records showing continuing operating expenses.
Receipts for building materials, a portable generator and other supplies needed for immediate repairs.
Paid invoices from contractors, security personnel, media outlets and other service providers.
Receipts for rental payments, if you move your business to a temporary location.

A final thought: Filing a business interruption claim is not easy, particularly when estimating losses. The process is highly complex and can be contentious. If the insurer disagrees with your loss estimates, they may have specialists audit your claim.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

Leasing a Car? Put It in Your Company Name

Posted on June 1, 2020June 1, 2020 by BGESGroup

As a business owner or company director wanting to lease a car for yourself, you have the choice of either business contract or personal car leasing, and each option has its own implications, benefits and disadvantages, particularly in terms of insurance.

And if you are using your new car mostly for work (think sales calls and visiting job sites), and you bought the car in your name, that mistake can cost you as your business won’t be able to insure it properly.

Your personal auto policy will provide coverage for some business use of your vehicle. The same is true for your employees’ personal auto policies, which also cover some business use of their vehicles.

But, a personal auto policy is unlikely to provide coverage if the vehicle is used primarily in business.

The personal auto policy, whether yours or your employee’s, may not have high enough limits to protect your business.

For example, take the scenario: You are driving to a business meeting while having an intense conversation on your phone with your production department and you plow into a car in front of you, injuring the driver and three occupants. Then they sue you and your company.

If you have only a personal auto policy, your insurer will probably defend you personally and pay the claim up to the policy limit. Your personal auto policy insurer will not defend or pay damages on behalf of your business, however. Most certainly, once your policy limits are exhausted your business could be on the hook for the rest of the damages, but your firm’s insurance would likely not cover it.

If you or your employees are driving personal vehicles on business and relying on your personal auto policies, be sure you and they have sufficient liability coverage to protect your business in the event of a serious auto accident.

Do not expect to rely on a personal umbrella policy for any claims that arise from business use of a vehicle. Typically, the personal umbrella excludes all claims occurring in the course of a business endeavor.

The takeaway

If you are in the market for a new car that you’ll be using a significant amount of the time for work, you should seriously consider leasing it in your company name. It will save you from headaches later if you are involved in an accident.

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If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

Reduce Chance of Lawsuits with Strong Employee Handbook

Posted on May 27, 2020May 27, 2020 by BGESGroup

The legal threat is constantly growing for businesses, not only from outside the organization by business partners or customers, but also from within – by employees.

Currently the bigger threat is being sued by your own staff for running afoul of a smorgasbord of statutes like labor, wage and hour, worker classification, discrimination and harassment laws.

As an employer you need to be aware of the many threats errant policies may pose to your organization’s financial wellbeing. One lawsuit by a disgruntled or wronged employee with a large award or hefty attorney fees can sink a small business.

Part of protecting your organization is implementing strong workplace policies and enforcing them. But you also need to communicate them to your staff, including via your employee handbook.

To best protect your business, your handbook should cover the following:

‘At-will’ employment. This policy basically states that either you or the worker can terminate the employment relationship at any time and for any reason (as long as it is legal). This needs to be clearly understood by employees.
Discrimination and harassment. Make it clear that your organization has a zero-tolerance discrimination and harassment policy and that you will always take a complaint seriously.

The handbook should include information about who to contact with a complaint, and how to file a complaint. The policy shouldstate that the accuser will be protected against retaliation, as well.

Finally, spell out the steps you will take against employees that violate the policy.

Employment classification. Make sure that you outline clearly how your employees are categorized (full-time or part-time, exempt or non-exempt). Spell out which employees are eligible for company benefits, such as sick leave, vacation time and employer-sponsored health insurance.
Time off and employee leave. Describe the rules for accruing and using vacation time and sick time. List any holidays for which your employees will receive pay. Clearly outline the steps your workers need to take to request time off, as well as note whether unused time will carry over from year to year.
Meal and break. Every state has meal and rest break laws. In California, non-exempt employees must be provided with no less than a 30-minute meal period when their work period is more than five hours. In addition, non-exempt employees are entitled to a 10-minute break for every fours hours worked.
Timekeeping and payday. Your employee handbook should describe the rules and methods for recording time worked. It should also cover paydays, ways in which employees can receive their pay (check, direct deposit, etc.), and how final pay will be handled should you need to terminate an employee.
Workplace safety. Regardless of your work setting, your employee handbook should cover safety and emergency procedures. Even if your operation is mostly office workers, there are still hazards they should be made aware of.
As part of the safety policy, you should also include information on what an employee should do if they are injured on the job, including who to report to.
Attendance. This is an important one, and employees must understand that their jobs could be at risk if they fail to come to work on time, leave early often or miss too many days. You need to have rules in place that your staff understand, so that you can enforce policies on attendance punctuality.
Make sure that you outline what you consider excessive absenteeism and what employees need to do and who to contact if they are going to arrive late or need to take time off.
Employee conduct. Outline the standard of conduct you expect from your workers when it comes to drug and alcohol use, workplace violence, confidentiality, conflicts of interest and other common issues.

Make sure that your policies are conveyed to new hires by going over the handbook with them page by page, asking them to take it home and read it and having them sign off that they have read it when they are finished.

It is also a good idea to hold a yearly refresher for all existing staff, as well.

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If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

More Older Workers’ Comp Claims Being Settled as COVID-19 Brings Uncertainty

Posted on May 21, 2020May 21, 2020 by BGESGroup

Certificate of Insurance NYC One bit of good news coming from the COVID-19 pandemic is that the economic downturn has boosted efforts to close older workers’ comp claims that have been lingering as both sides cannot agree on a settlement.

Due to the financial pain brought on by the sudden downturn, injured workers who have been reluctant to settle their claims have been coming forward to close them, according to workers’ comp attorneys.

The injured workers are often settling their claims for less than they were demanding before. One lawyer told Business Insurance magazine that he was seeing claimants come in with offers that were on average 10% lower than previously.

This is an important development for employers who have legacy workers’ compensation claims that have stayed open as the injured worker remains on permanent disability and may also still be receiving ongoing or sporadic medical treatment. Employers want to close these claims because the longer they stay open, the more they end up costing the insurer, and hence it drives up the employer’s workers’ comp costs.

One of the most unpredictable parts of older claims is unexpected adverse claims cost development, particularly if the injured worker develops new medical complications that are an outgrowth of or related to the original injury claim.

When that happens, the workers’ comp carrier will also have to pick up the tab for that treatment, further driving up the cost of the claim and affecting the employer’s workers’ comp experience.

Work with your insurer

In a white paper, global insurance giant Marsh recommends that employers try to work with their insurers to proactively settle these older claims to save money in the near and long term, and to reduce the prospects of the claim deteriorating further given the “uncertainty about the post-COVID-19 economic environment.”

Marsh said that businesses should take a strategic approach to closing these old claims by working with their insurer’s claims adjuster and using analytics and claims inventory management tools to identify complex claims and focus on settling them first.

Another smart move is to stay in close contact with injured employees to help them navigate the workers’ comp system. And if they are at home on the mend, the employer should make a point to regularly reach out to them to see how they are healing up and if they have questions about their claim and the process for returning work.

This is one of the best ways to reduce the chances of an injured worker becoming disgruntled and hiring a lawyer to litigate their claim, which will usually drive up the cost of the claim in addition to the time they are away on workers’ comp disability.

Insurers are also feeling the effects of the COVID-19-related economic downturn, which gives them an incentive to try to settle old claims so they don’t have that uncertainty of how much they will eventually end up paying for the claim.

The downturn has also forced some insurers to consider laying off claims representatives as they deal with the prospect of lower premium volumes.

Injured workers may also have an incentive to get their claims closed by receiving a lump-sum payment now, which they may need due to the poor economic environment.

The takeaway

If you have any legacy workers’ comp claims that are still being paid, you may want to consider reaching out to your insurer to see if there is a possibility of getting the injured worker to renegotiate a settlement so you can get the claim closed. The longer it stays open and because of the uncertainty brought on by the pandemic, it would behoove any employer to take this step.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

How Does a Workers’ Comp Waiver of Subrogation Affect Your Business?

Posted on May 17, 2020May 17, 2020 by BGESGroup

It is very common for the insurance requirements in a construction contract to include a provision requiring the subcontractor to waive all rights against the owner and general contractor for recovery of damages to the extent these damages are covered by the sub’s workers’ compensation and general liability or commercial umbrella liability insurance. Owners and general contractors insist on this provision because they want to protect themselves from being held liable for injuries to a subcontractor’s employee. Typically, the contractor giving the waiver asks its insurance company to attach a “waiver of subrogation endorsement” to its workers’ compensation policy.

The endorsement states that the insurance will company will not enforce its right to recover payments it makes to an injured worker from the person or organization listed on the endorsement. It applies only to the extent that the employer insured by the policy performs work under a written contract requiring the employer to obtain the insurance company’s waiver. It does not directly or indirectly benefit anyone not listed on the endorsement. With this endorsement on the policy, the company cannot attempt to recover payments it made to an injured worker from the company listed on the endorsement, even if that company was responsible for the injury. Consequently, the loss impacts the employer’s experience modification, probably increasing future premiums. In addition, the endorsement carries an additional premium for the employer, normally some percentage of the premium attributable to the job.

The endorsement and the waiver agreement in the contract do not bind the injured employee. He still has the ability to sue the owner and general contractor for his injuries. However, it is also common for construction contracts to require the subcontractor to defend and indemnify the owner and general contractor from any such suits. Therefore, it is probable that the employer will have to pay an additional premium for the endorsement, pay higher future workers’ compensation premiums for the loss, and pay higher future liability insurance premiums because its policy will cover the other parties’ liability.

For example, assume the sub’s employee suffers serious injuries when tools and materials fall off a scaffold and strike him. He collects workers’ compensation benefits for his medical costs and lost wages. The sub’s workers’ compensation policy includes the waiver of subrogation endorsement, so the insurance company cannot recover any of its payments. The worker sues the owner and general contractor for his pain and suffering. However, the contract requires the sub to cover the owner’s and general’s liability, so the sub’s liability insurance pays for the pain and suffering lawsuit. The sub’s insurance pays twice for the same injury to the same worker.

Owners and general contractors require waivers of subrogation for several reasons. Insurance consultants, brokers, and risk managers usually encourage them to require waivers. Waivers protect their liability insurance and reserve it for other claims. Because a waiver reduces potential liability losses, they become more attractive to liability insurance companies and probably pay lower premiums. Also, subcontractors often do not resist these requirements because they feel they lack negotiating leverage and their insurance companies are usually willing to provide the endorsement.

A few states have curbed the use of waivers of subrogation in their workers’ compensation systems. At least four states have passed laws making the requirements unenforceable, and other states allow the employer to recover from the injured employee some of the proceeds of pain and suffering lawsuits.

In the majority of states that allow waivers, contractors should work with professional insurance agents experienced in providing construction insurance. They can suggest insurance companies that will offer the needed coverages at a reasonable cost and assist with contractual issues such as waivers of subrogation. Above all, contractors must read and understand their contracts so that their agreements do not become an ugly surprise after a loss.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com

Testing Workers for COVID-19 Raises Privacy, Discrimination Issues

Posted on May 14, 2020May 14, 2020 by BGESGroup

Employers whose businesses continue to operate are obviously concerned about the coronavirus spreading through their worksites, so many have started testing their workers.

Recent U.S. Equal Employment Opportunity Commission guidance authorized employers to conduct COVID-19 testing and check temperatures of employees. But doing so could expose a business to a number of employee legal actions from invasion of privacy to discrimination and wage and hour charges, say employment law attorneys.

While the EEOC guidance refers to existing Americans with Disabilities Act regulations requiring that any mandatory medical test of employees be “job related and consistent with business necessity,” it left many questions unanswered.

So, if you decide to start testing workers, you will have to navigate a number of issues, such as:

Which tests are appropriate?
What are the standards for protecting workers’ privacy?
Should employees be paid for the time they wait in line to be tested?
Should you get written consent?
How will you ensure that the policy is applied consistently?

Employment law experts say there is often a surge in employee lawsuits when new rules or guidance are being issued, and more so with such a sensitive issue as one’s health during a pandemic.

The kinds of claims that employers may see as a result of employee testing include:

Invasion of privacy
Failure to protect employees’ personal health information
Discrimination
Retaliation
Wage and hour actions if waiting for testing takes time.

What you can do

Typically, employers would not be allowed to test a worker’s temperature for a specific disease, but these are unusual times and the threat of infection is too great.

Most lawyers are interpreting the EEOC guidance as meaning that employers may take steps to determine whether employees entering the workplace have COVID-19 because an individual with the coronavirus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

To cover your bases, you should plan your testing in detail, including:

How you will be conducting tests (providing at-home test swab kits, testing upon arrival, or offsite).
Designate a person who is authorized to conduct tests.
Document how you will be administering tests.
Plan for how you will account for false positives or false negatives.
Decide how often should you be testing.
Budget for the testing.
What will you do if a worker tests positive or has a fever (if you are just checking temperatures)?
Don’t have exceptions to the policy or, if you do, keep them to a minimum. The more exceptions to a policy, the more likely you are to be sued.
The policy should comply with guidance from the Centers for Disease Control and Prevention, such as using non-contact thermometers and ensuring social distancing during the process.

Insurance

The risk of being sued when administering testing is real and you should do everything you can to make sure it’s carried out fairly and consistently. But even if you do everything by the book, you can still be sued.

During bad economic times when people are losing their jobs, employee lawsuits tend to rise and, even if you are eventually found to have acted within the confines of the law, you still have to pay the legal fees.

One type of policy that could step in to protect you is employment practices liability insurance. EPLI will cover awards and legal costs in employee-initiated lawsuits. Each policy is different though, so it’s best to consult with us first.

If you are testing or are considering testing your staff, you may want to consider it.

If you would like to speak with us call Gary Wallach at 914-806-5853 or click here to email or click here to visit our website.

Company: BGES Group, 216A Larchmont Acres West, Larchmont, NY 10538

e-mail: bgesgroup@gmail.com

website: http://www.bgesgroup.com