Category Archives: Business Interruption

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RIMS Virtual Advocacy Week: A Q&A with Florida Insurance Commissioner David Altmaier

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Today, RIMS is taking its annual Legislative Summit online, kicking off the first RIMS Virtual Advocacy Week. Featuring a full slate of networking, a panel on pandemic insurance, updates on the 2020 U.S. elections, and hands-on advocacy with members of Congress, RIMS Virtual Advocacy Week is still open for last-minute registrations, if you want to join in on the action.

On Wednesday, September 16, the agenda includes a fireside chat with Florida Insurance Commissioner David Altmaier, who is also president-elect of the National Association of Insurance Commissioners (NAIC). Commissioner Altmaier has held the position for four years and has been with the Florida Office of Insurance Regulation office for nearly 12.

Altmaier recently appeared on RIMScast to discuss the issues he will address in Wednesday’s session, most notably the impact COVID-19 has had on the landscape of business interruption coverage. Check out the highlights below, and download the episode for Commissioner Altmaier’s full interview and a deeper dive into other topics such as ORSA reports, the Terrorism Risk Insurance Act (TRIA) and the National Flood Insurance Program (NFIP).

What playbook did you use to prepare and react to COVID-19?

David Altmaier:  Our response initially looked a lot like what we would do for an inbound hurricane: We assembled what we call our “incident management team,” and started to look at the types of needs of consumers from an insurance standpoint. We put into place mechanisms that we thought would be helpful as the pandemic began to take hold in Florida and around the United States. And we saw insurance commissioners around the country doing the same thing, obviously, as the pandemic unfolded and we started to see other risks and concerns emerge.

COVID-19 has been at the forefront of all of our regulatory discussions going back to March of this year. and that will continue to be at the forefront of our discussions even after the pandemic has concluded.

Business interruption insurance is closely tied to it and has emerged as one of the more pressing insurance issues as a result of the pandemic. We have seen issues like telemedicine and catastrophe response in a virtual setting, for example, also come up as a result. [That has] impacted how we go to work every day and how we interact with our stakeholders, and I think those will be some worthy discussion topics as well.

How can the risk management community drive meaningful change in regulations, policies and legislation?

DA: As discussions take place about an event that we haven’t seen in a really long time, like a pandemic, there will be a lot of ideas that come up in terms of how to react to the current pandemic, as well as how to prepare for future pandemics. And I think that, as we have those conversations, there’s going to be a multitude of stakeholders whose viewpoints are important.

Risk managers are certainly going to be at the top of that list because they are going to understand the risks that the insurance industry faces. We see ideas of what level of responsibility the insurance industry [should have] in terms of covering things like business interruption insurance. Their expertise will be invaluable as we begin to work with state and federal leaders in crafting policies that can assist with the current pandemic, as well as future pandemics.

Own Risk and Solvency Assessment, or ORSA, is a framework heralded by the NAIC. Why should risk and insurance professionals look to ORSA reports for guidance?

DA: ORSA reflects how our insurance market, along with other majors of our economy, evolves over time and responds to new and emerging risks. It’s a constantly changing environment that regulators are trying to evolve along with, and our teams here in the insurance departments are trying to make sure that we stay ahead of the curve in terms of identifying those emerging risks.

The ORSA report is a glimpse into the thought process for our larger companies and groups into the boardroom and into the C-suites. [It features] theories on their own risk and how their unique position in the marketplace might expose them […] and require them to take steps to mitigate those risks. It’s a really critical piece of information for regulators to have as we build our own supervisory plans, going forward. Obviously, the pandemic that has occurred—like with any catastrophe—potentially highlights things that may have previously not been considered.

Let’s talk about force majeure. The pandemic has inspired new legislation to be drafted that affects the language of insurance policies in an effort to cover interruption. Where does the NAIC stand on that?

DA: NAIC sent feedback to Congress early on, in early to mid-March, with our thoughts that requiring carriers to cover losses that weren’t previously contemplated under the policy forms could do a lot more long-term harm than short-term good.

We have seen some state houses file state legislation that would be similar, in that it would require carriers to cover business interruption losses even if the policy forms didn’t contemplate that. We’ve sort of left it to individual insurance commissioners in those states to work with their legislatures on what’s best for their market.

Planning and Risk Assessment for Returning to Work From COVID-19 Closures

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As businesses reopen and begin having their employees return to work, navigating the impacts of COVID-19 will undoubtedly be a challenge. Not only does keeping employees and customers safe take on new meaning, but sorting through rapidly changing guidelines can be overwhelming at best.

Adding to the complexity of returning to work after coronavirus-related closures, the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC) and various jurisdictional health departments are all providing guidance. To best keep employees safe and make sure businesses are heading down the right path of compliance in this new era, employers should focus on planning and structure reopening into four phases: 1. identify organizational responsibilities, 2. assess risk, 3. identify the controls needed to return safely, and 4. implement.

1. Identify Organizational Responsibilities

OSHA’s Infection Disease Preparedness and Response Plan (IDPRP) has presented a helpful approach for a range of organizations across the country. The plan helps emphasize and communicate basic infection prevention measures and establishes policies and practices to reduce the risk of disease transmission in the workplace. It also helps employers develop procedures for prompt identification and isolation of potentially infectious individuals, along with implementing safe work practices and workplace controls, such as engineering and administrative controls.

To start, identify the people within the organization who will lead the return-to-work effort. This team will provide daily updates on plan implementation, review company sick leave policies and procure and distribute Personal Protective Equipment (PPE).

During this phase, review your organization’s policies and procedures to ensure they are not creating obstacles for social distancing or staying at home when sick. Sick leave, quarantine policies and pay continuation should all be modified as necessary.

2. Assess Employee Risk Exposure to COVID-19

With a team in place, it’s time to dig deep into individual roles within the organization to understand the risks associated with various work sites and job tasks. The IDPRP helps organizations identify and quantify risks associated with infectious disease and helps to evaluate an employee’s exposure to COVID-19.

When evaluating the individual roles, identify the position, task and potential exposure based on criteria laid out in four exposure levels:

  • Low risk: Jobs that do not require contact with people known to be or suspected of being infected with COVID 19. Workers in this category have minimal occupational contact with the public and other coworkers. Office workers and telecommuters are examples of low-risk roles.
  • Medium risk: Jobs that require frequent or close contact with people who may be infected, but who are not known to have or suspected of having COVID-19. Higher-volume retail workers, restaurant servers and teachers are examples of medium-risk roles.
  • High risk: Jobs with a high potential for exposure to people known or suspected to be infected with COVID-19. Healthcare support personnel, janitorial personnel in healthcare and medical transport personnel are examples of high-risk roles.
  • Very high risk: Jobs with a very high potential for exposure to people or samples with known or suspected COVID-19 infection during specific medical, postmortem or laboratory procedures. Laboratory workers testing for COVID-19, pulmonary therapists and morticians performing autopsies are examples of very high-risk roles.
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3. Identify the Controls Needed to Return Safely

After completing a risk assessment for each role, identify specific PPE and administrative and engineering controls to reduce employee exposures. Clerical work, for example, is considered low risk and controls include social distancing and awareness training. A task such as stocking shelves where an employee has moderate exposure to others is considered a medium risk and nitrile gloves, cotton masks and other PPE are recommended. For tasks with high or very high exposure such as healthcare delivery staff, controls include nitrile gloves, facemasks, N-95 or better respirator, protective gown, booties, and head cover.

4. Put the Plan in Action

There are many organizational actions that can be implemented to further prepare to support and enforce the mitigation controls in place. Engineering controls to consider include installing high-efficiency air filters in HVAC systems, increasing a facilities dilution ventilation rate or installing physical barriers to control exposure. Post signs detailing cleaning and disinfecting procedures and social distancing requirements.

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Activate temperature stations and enforce an elevator policy.

For a successful return to work, it is essential to communicate and train employees regarding protections in the workplace. A communication plan should be identified during the organizational return-to-work planning phase, along with employee, supervisor and manager training. The workforce must be well-versed in recognizing symptoms, and everyone should know how to report possible exposure and what mitigation controls specific roles should be using. Your workers compensation carrier should be able to walk you through this process and help get you back to work. Tools and resources are also available on the OSHA and CDC websites.

Organizations that had clear pandemic response plans in place ahead of COVID-19 have had better access to PPE, quicker response times to daily changes in recommended controls, and more consistent ability to address employee concerns. If an employer does not currently have a response plan in place, however, it is never too late to get started. Preparing to return to work is a perfect time to establish the framework to make sure a business is not only ready to work during COVID-19, but also ready for unforeseen disasters in the future.

Preventing Paycheck Protection Program Loan Scams

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The COVID-19 pandemic and subsequent shutdowns have meant perilous times for small businesses across the country, with many shutting down temporarily or even permanently. As part of the U.S. government’s efforts to forestall bankruptcies and layoffs, Congress allocated hundreds of billions of dollars for the Paycheck Protection Program (PPP). Small businesses can apply for loans from the U.S. Small Business Association (SBA), which the SBA will forgive if the receiving business meets certain criteria, like “if all of the company’s employees are kept on the payroll for eight weeks and the money from the loan is used to pay for rent, mortgage interest, utilities or payroll.”

The program has helped many businesses, but also left many stranded and desperate when they could not qualify for the loans. According to the Wall Street Journal, as of this week, the government has disbursed “4.6 million loans worth more than $513 billion.” But some businesses were forced to return the funds when they discovered they could not open soon enough to meet the eight-week deadline, and some did not even bother applying because they did not meet the criteria. The program has also faced criticism for not providing enough funds, and when larger and/or publicly traded companies (like restaurant chain Ruth’s Chris) received loans.

As with many other government programs that award payouts and may have confusing or labyrinthine application and approval processes (such as Social Security payments or tax refunds), scammers have targeted desperate businesses trying to access PPP funds. Online identity verification service Social Catfish recently published guidelines for avoiding PPP-related scams that small businesses are facing, including phishing and robocall scams.

As Risk Management recently reported, phishing scams—in which criminals use fraudulent emails to trick users into clicking malicious links or divulging sensitive personal information—have proliferated since the start of the COVID-19 pandemic, often specifically targeting pandemic-related concerns. According to Social Catfish, online scammers have been using emails posing as the SBA inviting the recipient to apply for a PPP loan, then installing malware or stealing any information provided. With this information, scammers can then pose as a business to apply for loans or steal funds.

Scammers may also try to contact businesses by phone, either in person or by robocall, asking for confidential information or demanding a fee for their PPP application, even promising faster processing after the payment. Similar to the IRS, the SBA does not call PPP applicants for information, and there are no fees associated with PPP applications. Businesses applying for PPP loans may also encounter fake companies claiming that they facilitate applications, which scammers then use to steal the confidential information victims provide.

 To avoid being scammed, Social Catfish recommended that businesses interested in applying for PPP loans do their due diligence by following the steps below:

  • Don’t pay for a PPP Loan application. The SBA doesn’t require payment to fill out and submit a PPP Loan application. If someone is charging you to fill out an application, chances are its a scam.
  • Don’t give your information in response to any suspicious email, text, or phone call. The SBA will not email you out of the blue to fill out a PPP Loan application. If someone is emailing you out of the blue to fill out an application and to give them your information, chances are they are trying to scam you.
  • Verify the lender before applying for the loan. Only lenders approved by the SBA can administer PPP Loans. To find out if the lender you are applying with is approved to distribute PPP Loans, click here.
  • Don’t click on links in emails. The links in the emails are often filled with viruses and malware that will infect your computer and steal your personal information. They also spoof the application so that you’ll have to give out your personal or business’ confidential information.
  • Don’t reply back to any text or email you don’t know. Replying back to them with your personal or company’s confidential information may lead to you getting scammed. The SBA will not email you encouraging you to apply for the loan, you would have to look for the loan yourself.

Using Captives to Insure Against Black Swan Events

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Until recently, a global pandemic was, in most people’s minds, little more than a compelling plot to blockbuster films and apocalyptic science-fiction stories. A disease drastically changing the way of life and business operations for people across the globe and inciting wide-spread fear, quarantines and stay-at-home regulations was unthinkable for most beyond the “prepper” community. Now, though, after weeks of lives overturned, hindsight is 20/20 (pun intended). Many business owners and executive teams now agree the threat was obvious. A black swan.

As popularized by finance professor and Wall Street trader Nassim Nicholas Taleb in relation to financial markets, the term “black swan” refers to a rare or low-probability event that deviates from what is normally expected but poses critical threat. The 2008 financial crisis, the 2001 Fukushima nuclear disaster, the 9/11 terrorist attack and the dot-com crash of 2000 are all considered black swan events. We can never know with specificity which particular black swan will come, but we can know with certainty that one eventually will. And, due to their severe consequences, we should therefore consider how to make sure our lives and businesses will be robust against them. 

Insurance for Black Swans

Third-party commercial insurance policies often include business interruption coverage. Business interruption insurance protects against losses sustained due to periods of suspended operation. With COVID-19, many businesses considered non-essential have been forced to close and numerous businesses that are still hanging on have experienced challenges to their revenue streams as a result of coronavirus restrictions. This is where this form of insurance comes into play. However, pandemics are not the only black swans that business interruption insurance would cover. It could also cover losses from unexpected events like natural disasters, cybersecurity attacks, terrorist attacks or fallout from climate change. Also, even if a business’s insurance policy does not cover pandemic disease through business interruption, it is possible that other policies might be triggered due to the chain reaction caused by the black swan, such as:

  • Supply Chain Interruption
  • Loss of Key Customer
  • Subcontractor Default
  • Property (e.g., loss of access to business premises due to quarantines)
  • Catastrophic Risks

However, third-party commercial insurance policies are not always enough. These policies are often riddled with exclusions that prevent coverage during the time it is most needed and can lead to a claim being denied. Commercial insurance for an asymmetrical threat like a black swan event can also be extremely costly or difficult to obtain. And in many cases, coverage is simply unavailable. For example, during the avian flu epidemic, many U.S. insurers added an exclusion to their policies, “Exclusion for Loss Due to Virus or Bacteria” (ISO form COP 01 40 07 06). Similarly, the insurance industry responded to SARS by adding exclusions to preclude coverage for losses triggered by business interruption.

Businesses need to review their insurance policies to identify gaps in coverage. Some may want to consider filling these gaps and strengthening their coverage by supplementing the third-party commercial insurance by pooling their risks in a captive insurance company.

Taking Black Swans Captive

A captive insurance company is a licensed insurance company that is usually owned by a related business or its owner. That company can then insure a wide variety of the related business’s risks—risks likely to be implicated in any black swan event such as supply chain interruption, loss of a key supplier or customer, subcontractor default, bankruptcy of certain counterparties, or losses from governmental actions like forced business suspension or quarantines.

Via reinsurance arrangements, the captive insurance company can then pool its risks with the risks of many unrelated business, usually including those in completely different industries. Some of those businesses and industries will no doubt be the beneficiaries of most any given black swan event.  

For example, some physician practices that specialize in elective surgeries have seen their revenues cut by half overnight due to states prohibiting such procedures in order to preserve medical equipment for use by those fighting COVID-19 on the front lines. But other medical practices have seen their revenues skyrocket as COVID-19 has spiked demand for their services. By risk pooling via a captive insurance company, the claims of those practices that are suffering will therefore be paid in part by those that are prospering. This loss-sharing will allow the former to stay in business and continue covering their costs (such as rent and salaries), thereby making the entire economy more robust. And next time around, the proverbial shoes may just be on the other feet. In some cases captive insurance companies may also receive very favorable tax treatment that also provides additional liquidity during times of crisis. 

Preparing for the Next Black Swan Event

The coronavirus has heightened awareness of the need for both risk management and strategic planning to prevent future crises from negatively impacting company financials and viability. Sadly, not all businesses will remain healthy and viable through this pandemic, and it is too late for those impacted by the coronavirus to insure those particular losses. But business owners and executives can take immediate steps now to prepare for the next black swan, whatever it may be and whenever it may come.