Insurance Considerations for Those Doing COVID-19 Work

The market for COVID-19 contractors was changing daily, and now is changing weekly, as carriers become more experienced at underwriting this class of business.
At the beginning of the COVID-19 pandemic, we were bombarded with questions from our broker partners and insureds, about whether they were covered for any work involving viruses. We began pulling policies from all the markets in the restoration marketplace to conduct a coverage forms review.

There are currently four carriers writing business with positive grants of coverage for viruses in their definition of pollutants. Several carriers advised us that they would have a COVID-19 exclusion on all renewals and new business policies going forward.

Some carriers are silent on viruses but have no intention of defending losses from them. Some carriers who are silent know they may be forced to defend a loss during the current term. A carrier is silent when they do not have a specific exclusion for an exposure. Usually, the courts will lean to the insured’s benefit and find coverage for them on a disputed claim. As a result, many carriers also plan on non-renewing risks or renewing risks with a COVID-19/ virus exclusion. They will no longer be silent on coverage if they have a new specific exclusion. One carrier has a communicable disease exclusion in their Contractor Pollution Liability (CPL) form already, so they have no intention of defending coronavirus claims.

We found a carrier who was silent but created a specific form to add virus coverage in their pollution definition for the risks who fit their very stringent underwriting guidelines and appetite.

We found one environmental carrier not currently writing restorers, but writing true environmental contractors that have viruses included in their pollution definition. They will entertain coverage for viruses on certain environmental contractors.

There are currently three carriers who will entertain COVID-19 cleaning risks and can offer the term “virus” in their pollution definitions in the CPL sections of their policies. Each of them is a little different in what they will consider writing. Two of the three carriers will do excess but exclude viruses in their excess.

There is one carrier who will write a Difference in Conditions (DIC) CPL on a primary basis for COVID-19 and viruses, but only while excluding all other pollutants in an existing CPL policy elsewhere. “Difference in conditions” is a term used when providing coverage for something excluded in another policy. They will also entertain excess DIC liability for COVID-19 and viruses only where a primary carrier may be willing to do virus, but not willing to allow virus in their excess liability forms.

The market is very narrow with only four carriers, and to my knowledge, this is all there is in the domestic environmental insurance marketplace for COVID-19.

Generally, the market considers an acceptable risk that demonstrates the following:

1. Experience
2. Risk management/contractual
3. Training
4. Protocols, documentation, standards

Experience

The carriers do not want to write a risk where someone woke up one day and decided they were getting into the biohazard business. Risks like most janitorial services, carpet cleaners, or pest control will probably not have the experience the insurance carriers are looking for. Some of the bigger, better ones might qualify if they can demonstrate training, internal risk management, excellent job site supervision, and effective contracts.

Generally, they are looking for companies who work in PPE all the time and are very familiar with its use and the protection of their employees and the public.

Companies currently doing asbestos, lead, and mold abatement, trauma scene cleaning, death scene cleaning, Category 3 water, and sewage are generally considered acceptable risks to write virus coverage. All the companies who have been historically doing anthrax cleaning, ebola cleaning, SARS cleaning, cleaning in medical environments such as hospitals, surgery centers, and medical buildings are the most preferred risks of all currently being considered.

Risk Management / Contractual

The companies are not interested in writing anyone who does not have an excellent contract that limits their exposure.

The carriers want a document that contains at least the following components:

1. A detailed scope of work.
2. Wording that explains that the customer is buying a process and not a result. As of now, no one can go out and say they are disinfecting or sanitizing because no one knows if a “good kill” took place as there are no testing methods yet for COVID-19. Furthermore, once the contractor leaves the job and people are allowed back into the building, the place is immediately contaminated. Anyone out there advertising they are “sanitizing, cleaning, or disinfecting” is potentially waiting for a lawsuit to happen.
3. Limitations of liability.
4. Cross indemnities between the customer and the contractor.
5. The standards being adhered to.

The above items are a minimum needed to even be considered for coverage. There is a law firm catering to restoration contractors that have a very good COVID-19 contract. All four carriers in this market segment approve of this contract to be used by their insureds. Please reach out to us and we will share their information with you. We purposely omitted some additional items above in their agreements as it is the law firm’s work product and we respect that. An insured anywhere in the country can obtain this approved contract in a word document, and share it with their attorney in whatever state they are in to have it conform to their state’s laws. The carriers are looking for risks who demonstrate excellent loss history, internal controls, involved management, and skilled job supervision.

Training

The carriers will not accept any firm without some sort of documentable and verifiable training of employees and owner/supervisors.

The following are being currently considered for the training requirements and can be combined with other formal training in the marketplace. This list is not exhaustive as there may be others that I am not aware of yet:

1. RIA – CR, Certified Restorer
2. RIA – WLS, Water Loss Specialist
3. IICRC AMRT Advanced Microbial Remediation Technician
4. IICRC – TCST Trauma Crime Scene Technician
5. IICRC – WRT Water Damage Restoration Technician
6. IICRC – HST Health and Safety Technician
7. Bloodborne Pathogens Training
8. AHERA certification
9. Hazwopper
10. Specific product training for equipment currently being used in hospital environments

A review of the OSHA, EPA, and CDC websites shows that regulators are maintaining and even stepping up their requirements and recommendations for worker and occupant health and safety. This has created a need for two different types of training:

1. COVID-19 worker level training
2. COVID-19 management and employer level training

Protocols / Standards

The carriers want to know what protocols are being followed by the contractors and their employees. Some carriers will want to see their written protocols before offering terms. The carriers know if they do not currently have protocols, they may not want to entertain them at this time. The companies want to know what standards are being followed by the insureds, including but not limited to, the CDC, EPA, and OSHA.

Some contractors may be doing work where an industrial hygienist or environmental consultant is on the job as well.

Conclusion

We are witnessing a demand for all types of commercial property owners wanting some type of prophylactic cleaning done at their properties before their tenants and their employees start working again. The property owners wish to demonstrate that they took some additional care of their properties in the event they are sued. They wish to show that they took extra, non-required steps to mitigate risk. Many property owners want a cleaning process done on more than one occasion as businesses start the gradual reopening. This seems to be driving the demand for services.

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