Monthly Archives: May 2018

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National Safety Month Targets Preventable Deaths

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Hazardous work zones, insufficient planning, prescription and illegal drugs and distracted driving continue to affect the careers and companies of employees in the United States. According to the National Safety Council’s (NSC) Injury Facts, the lifetime odds for the top three accidental causes of death are motor vehicle crashes (1 in 102), opioid and painkiller use (1 in 109) and falls (1 in 119).

To demonstrate that “knowing the odds is the first step in beating them,” the NSC launched its No 1 Gets Hurt campaign as part of National Safety Month, which begins June 1.
“Preventable injuries are the third leading cause of death for the first time in United States history,” NSC president and CEO Debbie Hersman told Risk Management Monitor. “Sadly, our national opioid epidemic and the sudden recent increase in motor vehicle deaths have propelled preventable injuries past chronic lower respiratory disease and stroke in terms of how many lives are lost each year. Every single unintentional injury could have been prevented.”

The numbers tell the story. In 2015 there were 214,008 injury-related deaths in the U.S., 69% of which were unintentional.

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Slightly more than half of those unintentional deaths occurred at home, while the remainder were classified as motor vehicle nonwork (24%), public (22%) and work-related (3%). Although the latter had the smallest number – 4,190 – that still equates to nearly 11.5 preventable work-related deaths per day.

NSC data also indicates that, on average, an additional 12,100 at-work injuries occur each day.

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The cost of these injuries was estimated at nearly $142.5 billion in 2015, equivalent to 15 cents of every dollar of corporate dividends to stockholders, 7 cents of every dollar of pretax corporate profits and exceeds the combined profits reported by the nine largest Fortune 500 companies.

NSC statistics indicate that since 1900, death rates in the U.

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S. have decreased by 71.1%. Preventable causes of death are also down by nearly 45% in the same time period but have been steadily increasing since 1992, which marked its lowest point (60.5%).

No 1 Gets Hurt aims to identify safety risks and prevent the leading causes of injuries and deaths at work and at home. Each week in June will focus on a different overarching cause of injuries and fatalities in the U.S.:

  • Emergency Preparedness
  • Wellness
  • Falls
  • Driving

“This year’s theme, No One Gets Hurt, encourages everyone to make at least one change for safety during June,” Hersman said. “Small actions—creating an emergency escape plan, avoiding using your phone while walking, or wearing your seat belt, for example—can make all the difference.”

To help accomplish thus, tip sheets and articles are available in English and Spanish. NSC members will also have access to other materials, including checklists, 5-Minute Safety Talks, games and best practices. As with other safety-themed campaigns, NSC encourages employers to use these resources during the designated weeks, or create a schedule that works best for their organization.

The NSC made these suggestions to keep workers, families, and communities thinking about safety in June and beyond.

  • Distribute the downloadable National Safety Month materials
  • Create bulletin boards, newsletters or blog posts
  • Encourage others to take the SafeAtWork pledge at nsc.org/workpledge
  • Share posts on your social media channels using #No1GetsHurt
  • Provide safety training
  • Host a safety fair, lunch ‘n learn, trivia contest or celebratory luncheon

“Employers look to NSC for resources to help employees understand safety risks, and we are committed to helping them provide that education—not just in June, but year-round,” Hersman said.

Are You Prepared for GDPR?

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If your work involves personal data, you probably already know the European Union’s (EU) General Data Protection Regulation (GDPR) enforcement date is May 25.

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While penalties for noncompliance can be stiff, the sky may not be falling just yet.

GDPR focuses on personal data originating from the EU, which reaches well beyond the EU’s borders into organizations around the world that collect, process, use and store that data. As a regulation focused on data protection and privacy, GDPR’s impact may extend far outside the EU. For example, there are signs that Latin American countries may be considering a regulation that mirrors GDPR. With the recent Facebook/Cambridge Analytica data privacy fallout, several pieces of privacy-related legislation in the U.S. are currently being considered by federal lawmakers.

Privacy is a risk-based problem. Organizations should assess which risks exist and determine their risk tolerance. With data privacy, these risks are typically financial (such as fines and lawsuits) and reputation (bad press and negative perceptions).

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GDPR also introduces a newer risk into the risk landscape – one related to activist groups potentially using GDPR as a springboard to flood a target organization with data subject requests.

Why GDPR matters and to whom it applies
GDPR applies to personal data originating from the EU. GDPR gives individuals (aka “data subjects”) control and ownership over their personal data. This includes personally identifiable information (PII), IP addresses, biometric data, social identity, along with health, economic, cultural and genetic data. There are two reasons this has gotten so much attention:

  • The GDPR represents the EU’s most sweeping changes to privacy regulations in decades. It requires organizations to be transparent about which data is collected and how it will be used. All data collected must have a purpose and be kept accurate and up to date. Individuals (aka data subjects) now have the power to access their data, fix errors, restrict usage, move data and demand that their data be deleted.
  • The penalties for noncompliance are unprecedented. The law sets out penalties of up to four percent of global revenue or €20 million, whichever is greater. It is not clear at this point how and when these fines will be applied or if they are even enforceable outside the EU. However, the significant size of the potential fines and potential risk of noncompliance captured the attention of organizations around the world.

Large data-driven organizations have been working toward GDPR compliance since the regulation was passed in 2016. A significant number of organizations may not be ready, however. In fact, a flash poll conducted by Baker Tilly during a recent GDPR webinar revealed that 90% of attendees do not have the necessary controls in place to be GDPR-compliant.

What to do today
Preparing for GDPR compliance is a matter of preparing for privacy in general. Whoever you are and wherever you are in the world, consider these steps in your compliance journey:

  1. Identify potential data and systems affected by GDPR: Put a process in place to understand what data you collect and why. Know where it is coming from and where it is stored. You will want to know where you have “data pools” with GDPR relevance and you’ll want to know the scope. Is it one record or one million? Where are the gaps in compliance?
  2. Understand existing data privacy controls: Review your existing data protection controls and assess GDPR compliance. Do you have written security protocols in place? What is your risk exposure? Depending on the type of organization you represent, you may actually be closer to compliance than you think. For example, organizations compliant with NIST, ISO, HIPAA, PCI DSS, Privacy Shield or other frameworks, may be well on the way to GDPR compliance.
  3. Lead from the top and educate: The news cycle is now dominated by the questionable use of personal information and it appears the shift to a data subject-centered environment may very well be here to stay. This issue goes beyond risk management and IT. Marketing, legal, government affairs, HR and communications are just a few of the functional areas touched by privacy issues. They all need to be as committed to data protection as the chief privacy officer.
  4. Be clear about how you will deal with data-subject requests: Once you have a clear picture of the data you possess, it is essential to design, implement and document your processes to correct, transfer and delete that data if required or being able to provide a valid, legal reason for retaining the data.
  5. Determine whether you need a data privacy officer: The GDPR requires that a data privacy officer (DPO) be appointed in most situations. Proactive organizations should consider the organization’s position and strategy. Is privacy an essential piece of the business model (as it is for a bank) or the brand (as it is for Apple)?
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    The answer may well influence whether or not you define a new area of leadership and accountability.

Looking ahead
There is a shift taking place. People used to accept (or not know) that their online data and personal information were being tracked and used by others. Many people seemed to think this was simply the price of being online. Now, people are questioning how their data is being used and governments are starting to listen. GDPR is the likely first step toward far more widespread change.

This is not about solving every single detail today. Most experts believe that a well-documented plan and clear effort to comply with the GDPR will make conversations with supervisory authorities significantly easier. Do the homework ahead of time, know your landscape, get your systems in place, be transparent and be ready to pivot when necessary. Do that, and you will be miles (or kilometers) ahead of everyone else next time a new law or regulation goes into effect.

Lava Threatens Hawaii’s Land, Economy and Ecology

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Activity from the Kilauea volcano on the island of Hawaii, in Lava Zones 1 and 2—deemed the most dangerous of the island’s nine zones—continues into its third week. As previously reported, aftershocks, lava flow and lingering hazardous fumes in Lanipuna spilled into nearby areas. About 1,800 people living in surrounding neighborhoods were ordered to be evacuated earlier this month by Hawaii County. The one serious injury reported was of a man sitting on this front porch, who sustained a leg injury caused by lava splatter.

Experts warn that more powerful explosions may follow the 30,000-foot ash cloud that engulfed the sky on May 17. Since then, breathing masks have been distributed to local residents and workers.

On May 18, the Hawaii Tourism Authority (HTA) issued a press release aiming to quell fears about safety on other parts of the island. The statement explained that the only affected region is “a remote area along the Lower East Rift Zone on the island, Kilauea Summit and surrounding areas.” The steam and ash outbursts from Halema’uma’u crater are occurring in Hawaii Volcanoes National Park, which is about 40 miles from the Lower East Rift Zone. This is a natural occurrence as rocks fall into the crater and magma interacts with groundwater.

An “aviation red alert” was issued last week due to the potential that aircraft routes could be impacted by the ash, but flights and normal operations have apparently not been impacted and the HTA maintained that there is “no reason for visitors planning a trip to the Hawaiian Islands to change or alter their leisure or business travel plans.”

Reports indicate, however, that as of last week, cancellations from May through July added up to at least $5 million and bookings for hotels and other outdoors activities have declined by 50%.

And while the tourism and transportation industries are integral to the state’s economy, the risk to its ecology is becoming more evident and immediate. In addition to the falling ashes, air near the site contains sulfur dioxide, which some breathing masks cannot protect against.

Several fissures combined created two lava flows that have entered the ocean off Highway 137 near MacKenzie State Park, according to the Island of Hawaii’s Civil Defense. Highway 137 is a critical stretch along the coast that is the site of several problems for residents. A two-story lava wall emerged on parts of the highway, essentially cutting off a portion of the escape and evacuation route. Authorities have since opened an alternate escape route via Highway 11, which was blocked by almost a mile of lava in 2014.

The lava oozing into the Pacific Ocean has short- and long-term effects on the local ecology. While it is certain to harm or repel marine life, the chemical reaction when mixed with water also affects the air.

A Hawaii county spokesman said recently:

“The lava has entered the ocean. Be aware of the laze (lava haze) hazard and stay away from any ocean plume. Laze is formed when hot lava hits the ocean sending hydrochloric acid and steam with fine glass particles into the air.

As one can imagine, since the laze is in the air, lungs, eyes and skin are particularly susceptible to irritation and it can change direction quickly since it travels with the wind.”

Information on ash hazards and how to prepare for ashfall can be found here.

Although the K volcano has been active for decades, this most recent surge in activity could be attributed to the 6.9-magnitude earthquake on May 4, the strongest quake to hit Hawaii in more than 40 years. The earthquake was one of hundreds to be felt recently on the Big Island, although none of them caused any notable threat to life or property.

Confronting D&O Insurers’ Efforts To Carve Back Subpoena Coverage

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Whether a government subpoena constitutes a “claim” is a frequently contested issue between D&O insurers and their policyholders. D&O policies—at least with respect to coverage for private companies and individual insureds at any company—typically define “claim” through multiple subparagraphs: first, a broad and generalized subparagraph that usually references a “written demand for monetary or non-monetary relief,” followed by several narrowly framed subparagraphs that address more specific situations, such as “a civil or criminal proceeding commenced by the service of a complaint or similar pleading.” Most courts have held that generalized language, such as any “written demand for . . . non-monetary relief,” must be read expansively to encompass government subpoenas.

Insurers trying to avoid covering costs incurred by policyholders in connection with government subpoenas sometimes respond to these decisions by arguing that the generalized subparagraph should not be read broadly if one or more subsequent specific subparagraphs reference government subpoenas (or government investigations). For instance, an insurer may argue that a subparagraph expressly providing coverage for government subpoenas issued to individuals implicitly narrows the meaning of “written demand for . . . non-monetary relief” to foreclose coverage for government subpoenas issued to corporate entities. Similarly, an insurer might contend that a subparagraph explicitly providing coverage for subpoenas issued by the Securities and Exchange Commission implicitly narrows the meaning the meaning of “written demand for. . . non-monetary relief” to preclude coverage for subpoenas issued by other government agencies. Policyholders should be prepared to reject such arguments, as they ignore both well-established law regarding the interpretation of insurance policies (which prohibits insurers from limiting coverage by implication) and the typical structure of D&O policies (which contemplates that the subparagraphs defining “claim” will complement, not limit, each other).

First, it is well settled that provisions in an insurance policy setting forth the scope of coverage must be understood in their most expansive and inclusive sense for the policyholder’s benefit, while language that would limit coverage must be narrowly and strictly construed against the insurer (especially where that language would negate coverage provided elsewhere in the policy). Additionally, courts and commentators agree that any limitations on coverage must be stated in clear and unmistakable terms and cannot be extended by implication. Further, to the extent that there are any ambiguities in a policy’s terms, those ambiguities must be resolved in favor of coverage. Given these rules of construction, insurers have no basis to argue that a specific subparagraph in the definition of “claim” implicitly removes coverage that would otherwise be available under the generalized subparagraph.

Second, the multiple subparagraphs defining “claim” are intended to supplement, not restrict, each other. Insurance policies are often drafted with what courts have referred to as a “belts and suspenders” approach, and the definition of “claim” in D&O policies is one such example, where the generalized subparagraph is the belt ensuring coverage for a broad range of losses, whether or not they are enumerated in the specific subparagraphs, and the specific subparagraphs are the suspenders providing additional certainty on issues of particular importance to a policyholder. This additive approach to defining “claim” is also mandated by the use of the connector “or” between subparagraphs, a word that courts have consistently held requires that each of the connected provisions be given separate meanings that do not modify each other. This reading is also consistent with the many court decisions holding that a “written demand for . . . non-monetary relief” includes government subpoenas, as those courts reached their rulings despite the presence of multiple specific subparagraphs in those policies’ definitions of “claim.”

For these reasons, policyholders faced with an insurer attempting to deny or restrict coverage for government subpoenas by implication should be prepared to respond forcefully and push for coverage under the broad and generalized subparagraph that promises coverage for any “written demand for monetary or non-monetary relief.”