By Cara Wright
On June 24, 2020, the Ohio First District Court of Appeals held in Acuity v. Masters Pharmaceuticals, Inc., 1st Dist. Hamilton No. C-190176, 2020-Ohio-3440 that an insurer has a duty to defend an insured pharmaceutical distributor in lawsuits brought by governmental entities for costs incurred combating the opioid epidemic.
This declaratory judgment action arose from underlying litigation filed by the states of West Virginia, Michigan and Nevada, alleging that the insured – in this case, Masters Pharmaceuticals, Inc. – acted negligently in failing to investigate, report and refuse to fill suspicious orders of prescription opioids and that the failures to do so contributed to the opioid epidemic, resulting in increased costs for police patrols, judicial expenditures, person and public-works expenditures, substance-abuse treatment and emergency and medical-care services.
The provision of the particular policy at issue provided that the insurer would pay “sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.” The insurer argued that the policy did not require defense of the claims asserted by the states of West Virginia, Michigan and Nevada because they were seeking to recover their own economic losses, and not losses resulting from any ‘bodily injury’.
The First District rejected this argument. Instead, the Court held that while the governmental entities were seeking to recover their own economic losses, some of those losses (e.g., medical expenses and treatment costs) arose “because of” bodily injury. As a result, the Court found that the claims fell within the terms of the policy and that the insurer owed its insured a duty to defend.
The insurer also argued that its insured knew about the potential harm to individuals from the ingestion of opioids and that, as a result, the claims by the governmental entities were excluded under a policy “loss-in-progress” clause. The First District rejected this argument, too, finding instead that this policy provision was not an exclusion, but instead was a prerequisite to establishing coverage. In particular, the First District held that, although the insured may have been aware there was a risk that if it filled suspicious orders diversion of its product could contribute to the opioid epidemic; nevertheless, the mere knowledge of this fact was not sufficient to bar coverage under the policy’s “loss-in-progress” provision. Thus, the insurer was found to have a duty to defend its insured from the claims brought by the governmental entities.
Yesterday, the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act applies to discrimination based on sexual orientation and gender identity. Title VII outlaws discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Until yesterday, federal courts across the country were divided on whether Title VII also protects LGBTQ employees from adverse employment actions based on their sexual orientation and gender identity. The Supreme Court ruled in a 6-to-3 majority that it does.
One of the cases presented to the Supreme Court arose from an appeal from the Sixth Circuit (whose jurisdiction includes Ohio). In that case, Employer R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” The Sixth Circuit ruled in March 2018 that Title VII’s “discrimination by sex” does include transgender persons.
The Supreme Court arrived at its conclusion in part because Title VII already prohibits employment discrimination based even partially on sex. Discrimination against people for being homosexual or transgender is at least partially based on the person’s sex. It therefore follows that Title VII prohibits firing a person for being homosexual or transgender.
The Supreme Court concludes: “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” The Supreme Court’s dissent concedes that LGBTQ employees deserve to be treated fairly in the workplace but argue that the text of Title VII does not protect such employees. They also argue that the Court’s majority opinion legislates new law, violating separation of powers.
Because the Sixth Circuit held in 2018 that Title VII protects transgender employees, Ohio employer policies and practices should already be in compliance with yesterday’s Supreme Court decision. While Congress has not expressly changed the text of Title VII to include references to sexual orientation or gender identity, employers must ensure that they are not taking any adverse employment action against employees in whole or in part because of their sexual orientation or gender identity. Employers may wish to update their employment policies to expressly include these characteristics, but at a minimum must ensure that their practices comply with the law.
The full text of the Supreme Court’s opinion is available here.
Continue following Mazanec, Raskin & Ryder for updates on this and other changes in the law. For advice that is specific to your circumstances, please contact one of our attorneys.
This update is not intended to constitute legal advice or form an attorney-client relationship.
HB 197 went into effect on March 27, 2020. This is a new Ohio law that may alter the way municipalities collect income tax as a result of the COVID-19 emergency.
The Ohio Legislative Service Commission stated in its Final Analysis that the new law redefines “principal place of work” as the city where homebound workers live.
This means that many employees whose taxes are normally withheld in the city where they work may be entitled to a refund next fiscal year for the time they spent working from home. The cities where homebound workers live may also be entitled to reimbursement from the cities where the employees normally work.
According to a recent article, the new law will most likely result in mass tax refunds and cities losing significant municipal tax revenue. In Cleveland, for example, more than 85% of the city’s income tax is generated from withholdings collected from employees commuting into the city.
Municipalities may wonder what they can do to avoid mass refunds, class action lawsuits, and other litigation. It is too early to speak in general terms of the consequences of this law. The issues it presents are so complex that no two cases will be alike.
Continue following Mazanec, Raskin & Ryder for updates on this and other changes in the law. For advice that is specific to your circumstances, please contact one of our attorneys.
This update is not intended to constitute legal advice or form an attorney-client relationship.
Ohio employers are forced to handle a multitude of unprecedented challenges arising from the COVID-19 pandemic. With regard to the issue of workers’ compensation, Ohio employers should be aware of several proposed and enacted changes that will affect claims handling, and determine whether or not claims arising from exposure to COVID-19 are compensable. With that in mind, there are a variety of risk management best practices to be cognizant of as Ohio employers attempt to navigate these uncertain times.
Procedural and Legal Changes
In an attempt to ease the economic impact of the pandemic in Ohio, Governor DeWine requested the Bureau of Workers’ Compensation, and the BWC Board approved, a return of $1.6 billion to Ohio employers. Moreover, Ohio employers have the option to defer, with no application necessary, workers’ compensation premium payments for the months of March, April and May until June. Injured workers’ benefits will continue through at least April 30, 2020 regardless of whether the worker is able to submit to an Independent Medical Examination, have a physician complete a Medco-14 work ability form, or actively participate in job searches.
While the Bureau of Workers’ Compensation remains operational during the pandemic, several policies and procedures have been put in place to allow it to function in accordance with social distancing and shelter at home protocols. Industrial Commission hearings are being conducted by phone, but only on limited matters. Physician file reviews are being used over in-person IME where possible, and the option of virtual examinations is being explored. The Bureau has also suspended all face-to-face employer audits.
Compensability of COVID-19 Exposure Claims
When it comes to the issue of workers’ compensation, the biggest question facing employers as they try to plan for the impacts of the pandemic is, whether or not COVID-19 claims are compensable. Generally, communicable diseases are not compensable under workers’ compensation law as the following three elements must be demonstrated to establish a compensable “occupational disease”:
- The disease was contracted in the course of their employment;
- The disease is peculiar to the claimant’s employment by its causes and characteristics of its manifestation, or the conditions of the employment result in a hazard which distinguishes the employment from employment generally; and
- The employment creates a risk of contracting the disease in a greater degree and in a different manner than employment generally.
Given the present circumstances, it appears an employee would be hard pressed to conclusively establish that, more likely than not, they contracted COVID-19 at work. Even assuming a claimant could do so, they would still need to establish that their employment placed them at increased risk in comparison to the general working public. Outside of certain limited fields, this too would be a significant hurdle for a claimant.
In fact, when these elements have been applied to claims involving other communicable diseases in the past, courts have concluded they were not compensable and have pointed to the slippery slope that would be created if they were to be deemed otherwise. In one instance the Ohio Supreme Court opined,
“…if the term injury is to be construed to include typhoid fever contracted in the course of employment, it may as well include influenza, pneumonia, tuberculosis, smallpox, ordinary colds, rheumatism, and practically every disease which may be contracted by workmen in the course of employment, and the workmen’s compensation department will become a health and life insurance department for workmen, compulsorily supported by employers…”
However, several pieces of legislation have been introduced into the Ohio House of Representatives which would seemingly make it easier for employees to file claims for COVID-19. For instance, Ohio House Bill 573 proposes the creation of a rebuttable presumption that COVID-19 was contracted in the course of and arising out of employment for any employee who was required to work outside of their home following Governor DeWine’s March 9, 2020 emergency declaration. Such a presumption essentially negates the second two elements of a typical occupational disease claim and shifts the burden to the employer to prove that the employee’s exposure to the virus did not occur within the course and scope of employment. This presumption would apply only to claims arising during the declared state of emergency and the fourteen-day period thereafter.
Similarly, House Bills 571 and 605, propose the same rebuttable presumption, but are limited respectively to first responders/emergency medical workers and food service workers.
At first glance these proposals appear reasonable and tailored. However, we are well aware of the potential for this disease to cause critical illness resulting in extended stays in the intensive care unit and death. Moreover, we are only beginning to understand some of the longer term consequences of the disease, including reports of lasting cardiovascular and neurological damage. Even with the limited scope of these bills, the serious and potentially long term nature of COVID-19 claims could result in overwhelming costs. While no votes have been taken on any of these bills, and even if passed in the House, the bills would require Senate approval and the Governor’s signature, several other states have already enacted similar laws.
Other Actuarial Considerations
By all indications employers should be anticipating an increase in claims costs. Given the sheer number of people who (as is forecasted) will become infected and the difficult economic circumstances created by the pandemic, a sizable number of COVID-19 claims must be anticipated. Combined with the critical illness and fatality associated with COVID-19, this will correlate to exceptionally high claims costs. Increased legal and litigation expenses are another projected consequence as employers will seek legal opinions with regard to risk management, when deciding whether to accept or deny claims, and in order to test what is and is not compensable at the industrial commission and in the courts.
There are also a variety of tertiary elements that will impact the total number of claims and claims costs. Furloughs, workforce reductions and work from home policies have the potential to reduce the number of non-COVID-19 claims. However, these circumstances also pose a risk for fraudulent claims. Unfortunately, impending furloughs or workforce reductions can be seen as an opportunity for some to make a false workers’ compensation claim. Employers must also be mindful of the fact that their employees are subject to workers’ compensation when they are working from home. Generally speaking, it would be a compensable injury if an employee is injured at their home while acting for the benefit of their employer. The lack of witnesses and the difficulty in investigating such claims creates a greater potential for fraud. The challenges associated with investigating at home work related injuries also translates to increased claims costs due to the need for specialty investigations.
Regardless of the type of claim, costs will also increase as a result of longer claim durations. The Industrial Commission and the Courts are operating on a limited basis with many deadlines being continued thereby delaying the claims handling process. There is also the matter of limited access to the medical system delaying the treatment and evaluation of claimants. While this can be mitigated to a certain degree by way of virtual medical visits, the bulk of workers’ compensation claims involve orthopedic injuries that require imaging, objective testing, physical therapy, and elective surgery. Access to these in person diagnostics and treatments are limited and in many cases suspended. Once again, creating significant delays in the progress of workers’ compensation claims.
Considering the vast breadth of the pandemic and the efforts to contain it, as well as the developing projections of additional waves of the virus, its impacts are far reaching, and in many cases, likely still yet to be seen.
Risk Management and Claim Prevention
Certainly the most effective way to reduce the risks and costs of the direct and indirect COVID-19 workers’ compensation impacts is to prevent claims. The level of defenses an employer needs to take is dependent on the level of risk inherent in the particular industry and work environment. Consider the number of employees, the frequency with which employees come in contact with others, and the proximity of the contact. Taking into consideration the potential risks, employers should take all possible precautions to minimize employee exposure by way of administrative and engineering controls.
Administrative controls are policies and procedures that employers can put into place that function to both minimize risk and establish corporate culture. They are the first line of defense when facing the hazards posed by the COVID-19 pandemic. Examples of administrative controls include:
- Employee screening
- Temperature checks
- Experiencing symptoms
- Caring for someone who is ill
- Travel history
- Abiding by social distancing
- Establishing hygiene standards, including promoting frequent and thorough hand washing
- Encouraging employees to stay home if they are sick
- Allowing employees to work from home
- Altering and staggering work and break times
- Limiting the number of non-employees coming into the workplace
- Treating requests from employees with heightened vulnerability as a request for any other reasonable accommodation
These controls demonstrate to employees that an employer is taking the risk seriously and has their health and welfare in mind. In turn, employees are more cognizant of the risks and take necessary precautions as well.
Engineering controls are the physical changes to the work environment employers can implement in order to mitigate the risk of employee exposure. Examples of administrative controls include:
- Providing hand sanitizer containing at least 60 percent alcohol
- Routine cleaning and disinfecting
- Increase frequency of cleaning
- Alter cleaning schedule so that cleaning is visible to employees
- Providing employees with disposable wipes for commonly used surfaces
- Physical barriers
- Closing of common areas or reducing/separating seating and tables
- Altering processes to comply with social distancing
- Increased ventilation
- Isolation areas for the ill
- Providing masks or other personal protective equipment
Additional resources and materials on this subject can be located at the CDC Resources for Business and Employers. It should be noted that potential consequences with regard to employment injury and employee rights need to be taken into consideration when implementing various controls. For example, changing a manufacturing process to distance employees could result in an increased ergonomic exposure or over exertion. There is also the potential for employees to be moved too far from emergency stop buttons or positioned in a way that safety guards are not effective. Furthermore, attention must be given to employee privacy when performing symptom screening and interviews. Implementing some of these measures are far easier than others and can require significant planning and preparation.
Please contact us at email@example.com if you have any questions about COVID-19 impacts on workers’ compensation or any other COVID-19 legal issues.
On April 27, 2020, the Governor announced the schedule for businesses to return to operations to include the re-opening of dental practices for all dental procedures effective May 1. The return to practice includes strict adherence to Ohio Administrative Code provisions set forth in 4715-20 with respect to patient and personnel protection as well as sterilization and disinfection. However, the Board has also directed dental practices to follow the guidelines below:
- Pre-screen every patient for COVID-19 risk factors using a comprehensive questionnaire until accurate testing is available.
- Reduce the number of in-person appointments by utilizing telephone triage and other remote strategies to address specific patient concerns.
- Stagger patient appointments to minimize patient-to-patient contact. To facilitate adequate distancing, it is strongly recommended to limit one patient per dental care provider. Observing these guidelines will regulate the number of patients within an office/clinic at any given time.
- Social distancing will be observed in the dental offices and waiting areas. To help adequate distancing, it is strongly recommended to limit one patient per dental care provider. Observing these guidelines will regulate the total number of patients seen in a day and the number of patients within an office/clinic at any given time.
- Schedule patients ensuring that sufficient time is allocated for appropriate disinfection between patients as recommended in the ADA toolkit.
- Patients should come alone for appointments (except where necessary for interpreters, guardians of minors, and others needing assistance).
- Record body temperatures for every patient when they arrive for their appointment.
- Patients reporting or exhibiting COVID-19 symptoms are to be advised to contact their primary care physician immediately and placed in quarantine as appropriate. See updated CDC symptoms list: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
- Dentists should secure COVID-19 test reports where available for patients and staff.
- All staff members should have their temperatures taken upon arriving at work and a record maintained at the dental office.
- Staff members who report or exhibit any COVID-19 symptoms should self-quarantine and contact their primary care physician immediately and follow their advice. If found to be positive, the dental office should follow the Ohio Department of Health protocol.
- All dental personnel shall use appropriate PPE as dictated by the procedure performed, consistent with guidelines from the CDC and the American Dental Association, including masks, face shields, fluid-resistant gowns and hair cover if applicable.
- Dental providers should use high volume evacuators and isolation strategies including rubber dams when appropriate to limit exposure to aerosols.
- It is recommended that patients use a pre-procedure mouth rinse immediately before beginning a procedure.
- All surfaces must be disinfected between patients in accordance with the ADA guidelines.
- Special care should be taken for patients with higher risk (pre-existing comorbidities) or immunocompromised individuals.
- Dentists are encouraged to work with local public health agencies regarding necessary screening and reporting requirements.
In addition, dental practices are encouraged to follow CDC and ADA recommendations and guidelines which can be found at the links below.
- CDC: https://www.cdc.gov/oralhealth/infectioncontrol/statement-COVID.html
- ADA: https://success.ada.org/~/media/CPS/Files/COVID/ADA_Interim_Mask_and_Face_Shield_Guidelines.pdf
Risk Management Recommendations
The requirements and recommendations of the State Dental Board, CDC and the ADA will offer great protection for dentists, staff and patients from COVID-19 infection. However, what is not widely discussed is what will protect the dental practice from COVID-19 related claims. Such claims can come in the form of malpractice claims by patients who allege that they contracted COVID-19 from the practice or employment claims from employees who allege that they contracted COVID-19 in the workplace.
As with any legal claim, the best defense is documentation. In light of the challenges presented with COVID-19 and the enhanced guidelines of regulatory boards and agencies to combat the pandemic, documenting the steps taken by your practice to prevent the spread is critical.
Include in the Patient Chart:
- Detailed pre-screening of patient relative to known risk factors and symptoms;
- Update of the patient’s medical history to include identification of any comorbidities that would put the patient in a high risk group;
- Patient’s temperature and physical presentation upon arrival;
- Notation in the chart as to any patient with an elevated temperature or COVID-19 symptoms were referred to their physician and recommended quarantine;
- Whether the patient or a patient’s family member has tested positive and when;
- Who accompanied the patient, if any, to the appointment;
- Confirmation that appropriate PPE was utilized at all times during treatment; and
- All staff members present in the operatory during treatment (initials).
- Prior to re-opening the practice, have each staff member document whether they or another person within their household has tested positive and, if so, confirmation that the appropriate quarantine guidelines had been followed and completed;
- Notice to patients regarding social distancing and use of masks as mandatory while awaiting treatment;
- Disinfection log for each operatory confirming appropriate disinfection between patients and the time of each disinfection following recommended by the ADA guidelines;
- Daily record of all staff members’ temperatures;
- Any staff member who has elevated temperature and/or reports COVID-19 symptoms, as defined by the CDC, should document all patients and staff with whom they had contact;
- For all symptomatic staff, confirmation that Ohio Department of Health protocols were then followed; and
- Documentation signed by each employee, to be placed in that employee’s file, confirming that they:
- Have been provided with and understand all requirements set forth by the State Dental Board and the CDC relative to sterilization, disinfection and PPE.
- The employee understands that he/she has an obligation to provide notice to the practice in the event that there is a shortage of necessary PPE or, if necessary equipment or materials are not available for compliance with regulatory requirements or guidelines.
The above documentation are suggestions and are not exhaustive. While there is nothing that can prevent a complaint to the State Dental Board or the filing of a malpractice claim, following the regulatory requirements and properly documenting the patient chart and the activities of the practice will significantly enhance your ability to defend such complaints.
Should you have any questions or concerns, do not hesitate to contact an attorney at Mazanec, Raskin & Ryder for guidance and assistance.
The global impact of COVID-19 has led to many questions about ensuring workplace safety while also complying with anti-discrimination law. The Equal Employment Opportunity Commission (EEOC) has offered guidance on such topics with a publication entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Some of the more important answers to frequently asked questions include the following:
- May an employer send employees home if they display influenza-like symptoms during a pandemic?
- Yes. Advising workers to go home if they show symptoms of COVID-19 is not a “disability-related action” that violates the Americans with Disabilities Act (ADA).
- How much information may an employer request from employees who report feeling ill at work or who call in sick?
- Employers may ask employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- May an employer take its employees’ temperatures to determine whether they have a fever?
- The EEOC has stated that the ADA permits employers to make disability-related inquiries and conduct medical exams “if job-related and consistent with business necessity.” Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a “direct threat” to health or safety.
- However, employers should be aware that some people with influenza, including COVID-19, do not have a fever. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
- Despite EEOC guidance, public employers should speak to legal counsel before taking employees’ temperatures to discuss potential liability issues.
- May an employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
- No. The ADA prohibits making disability-related inquiries or requiring medical examinations of employees without symptoms. Employers may ask employees who voluntarily disclose their disabilities what accommodations they believe they need. Employers must keep such information confidential.
- Employers should not assume that all disabilities increase the risk of COVID-19 complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
This update is not intended to constitute legal advice or form an attorney-client relationship. If you have any questions, we encourage you to contact an attorney at Mazanec, Raskin & Ryder to help address your specific circumstances.