The economic impact of the COVID-19 pandemic will be widespread and touch every business in Ohio. The closing of bars and restaurants by governmental order as well as the voluntary cessation of operations has caused many businesses loss of income and employees loss of jobs. Businesses that continue operations through employees working from home may experience losses through decreased employee efficiencies or loss of business opportunities. As a result of this economic public health crisis, businesses will look to other avenues to recover those losses.
Additionally, there are an entirely new realm of liability and coverage exposures that a business may not have been previously exposed to. Many businesses have insurance policies that may be implicated by various elements of this unique situation. Matthew S. Brown is a Certified Specialist in Insurance Coverage Law through the Ohio State Bar Association. Matt has identified a number of insurance related issues that may impact your business in the coming days.
The first issue to address is business interruption. This could be a significant issue pertaining to your lost income from the impact of this virus. Most insurance policies that provide such coverage include language that requires the loss be the result of damage or loss to property. That phrase may be undefined in the policy. Coverage for business interruption may be difficult to obtain if you cannot establish such a loss or damage to property, but if such damage exists then you could have coverage for lost income.
The next issue to address concerns employees working from home. You will want to take into consideration several issues. From an insurance perspective, you will want to consider the extent to which you have insurance coverage on personal property used for business. Most employee homeowners’ policies have limits on property used for business, and those may not be sufficient to insure your property. You too likely have limits for business property used off premises.
Check your policy to make sure you have adequate insurance for property off your premises. Incidentally, if you have employees working from home you will need to consider the extent to which they have access to confidential information or trade secret information. It remains critically important that you initiate proper security protocols to maintain the confidential nature of the information or the trade secret.
Liability and Bodily Injury
Liability is another factor you will want to consider from an insurance perspective. Liability arising from your daily operations is likely unchanged. But you should consider your liability associated with employees exposing others to the virus. In order to have liability coverage you need to establish a bodily injury, property damage, or personal and advertising injury. Issues may arise regarding whether exposure to COVID-19 is sufficient to establish a covered “bodily injury” as defined in the policy.
The next issue, if there is a bodily injury, is whether an exclusion applies. For example, does the pollution exclusion apply? Are there other exclusions that may apply? Regardless, if you find yourself in a situation where a claim is presented or threatened, you should contact your insurance company and you should immediately contact your legal counsel as well. These issues will be developing over a long period of time and it is something you should have solid legal advice to address should you be confronted with a claim arising from or relating to COVID-19.
Worker’s Compensation and Employer’s Liability
There are also Worker’s Compensation and Employer’s Liability issues you will need to consider as well. For example, if you have an employee who is diagnosed as having COVID-19 does that employee have a Workers’ Compensation claim for contracting the virus at work.
The answer is likely no, but it could be dependent on the industry as well. For example, health care workers may have a better case to argue they contracted the virus while working as opposed to an employee in a static office environment. Again, these answers are heavily dependent on your unique situation. You will want to consider the implications of these issues when having employees work from home.
These are just a few of the various insurance implications that can flow from the COVID-19 outbreak and the resulting impact to your business. If you have questions, contact your attorney at Carlile Patchen & Murphy LLP so that we can help you navigate the waters of these complicated legal issues. If you do not have an attorney at the firm, Matthew S. Brown is a Partner and the Chair of the Business Litigation Group. He is a Certified Specialist in Insurance Coverage Law through the Ohio State Bar Association. If you have specific questions about your insurance coverage or the impact of COVID-19 to your business, please call Matt directly at (614) 628-0877 or email him at firstname.lastname@example.org.