Contractors, no matter what industry they work in, face environmental risks stemming from operations on a daily basis. For most contractors, a single pollution incident or loss can seriously damage their reputation, operations and even their balance sheet. Making matters worse, pollution incidents can be sudden or occur gradually over time.
While many contractors assume that environmental claims will be covered under their commercial general liability (CGL) policy, the unfortunate reality is that most CGLs contain pollution exclusions that leave contractors uninsured in the event of a pollution incident.
Thankfully, contractors are increasingly turning to contractors pollution liability (CPL) insurance to ensure they have the right coverage in place to remain secure and profitable.
CPL Coverage Basics
CPL policies provide contractor-based insurance for third-party coverage for bodily injury, property damage, defense, and cleanup as a result of sudden and gradual pollution incidents arising from contracting operations performed by or on behalf of the contractor. CPL insurance is intended to provide coverage to all types of contracting operations, including contractors who are involved in building construction and environmental firms that remediate polluted sites.
CPL policies are offered on either a claims-made or occurrence basis. What’s more, CPL policies are nonstandard, meaning each policy is different and can be modified to cover the various needs of the contractor purchasing the policy. Policies can be offered on a project or blanket program basis.
In some instances, CPL policies can also be used to cover losses from civil fines, penalties and punitive damages.
Covered Pollution Incidents
Contractors should keep in mind that CPL insurance policies differ in regard to the types of pollution incidents that are covered. Two important considerations when evaluating CPL insurance policies are:
- Whether or not the policy will respond to gradual releases of pollutants, as opposed to sudden and accidental releases
- The types of substances that are considered “pollutants” under the terms of the policy
Generally, policies that cover both gradual and sudden releases of pollutants provide contractors with a broader scope of coverage. In addition, policies that provide a broad definition of pollutants are considered superior to those that contain a narrow definition. Accordingly, it is important that contractors work with their broker to find a CPL policy that is tailored to their needs.
CGL Pollution Exclusions
A primary reason why contractors obtain a CPL policy is due to the various pollution exclusions contained in most CGL policies. The pollution exclusions found in most CGL policies take one of two forms, either “absolute” or “total.”
CGL policies with an absolute pollution exclusion remove coverage for most pollution events that would occur in the course of an insured’s business operations. However, despite its name, an absolute pollution exclusion may preserve coverage for certain incidental pollution damages, products and completed operations liability, and certain off-premises work.
However, more commonly, CGL policies include a more restrictive “total pollution exclusion.” This type of exclusion effectively removes coverage for any event the insurer characterizes as a pollution incident.
Contractual requirements serve as another motivating factor that lead many contractors to obtain a CPL policy. In many instances, project owners and general contractors will require contractors to obtain pollution insurance that meets certain, predetermined standards.
From this perspective, having a CPL insurance policy in place can serve as an upfront sales tool during the bidding process that enables contractors to qualify for opportunities when such coverage is required.
Finding the Right Policy
Regardless of specialty, all contractors should be mindful of the pollution risks associated with their work. A CPL insurance policy can provide much-needed security in the event of a pollution incident, even in the most unlikely of circumstances.
Let Scurich Insurance work with your organization to find the CPL coverage that is right for you.
The Occupational Safety and Health Administration’s (OSHA) electronic reporting rule requires certain establishments to report information electronically from their OSHA Forms 300, 300A and 301. Under the rule, the first electronic reports were due on July 1, 2017.
However, on Nov. 24, 2017, OSHA issued a new final rule officially delaying the first electronic reporting deadline to Dec. 15, 2017. Affected establishments will need to submit their reports through the Injury Tracking Application (ITA) website by that time or face possible OSHA penalties.
- Affected establishments must create an account on the ITA website and submit information from their 2016 OSHA 300A form by Dec. 15, 2017.
- Other deadlines under the electronic reporting rule remain unaltered. Therefore, affected establishments should begin their preparations to submit information from all 2017 OSHA forms by July 1, 2018.
OSHA’s electronic reporting rule affects establishments that:
- Are already required to create and maintain OSHA injury and illness records and have 250 or more employees;
- Have between 20 and 249 employees and belong to a high-risk industry; and
- Receive a specific request from OSHA to create, maintain and submit electronic records, even if they would otherwise be exempt from OSHA recordkeeping requirements.
The electronic reporting rule applies to establishments, not employers. An employer may have several worksites or establishments. In these situations, some establishments may be affected while others are not.
To determine whether an establishment is affected, employers must determine each establishment’s peak employment during the calendar year. During this determination, employers must count every individual that worked at that establishment, regardless of whether he or she worked full-time, part-time, or was a temporary or seasonal worker.
Finally, a firm with more than one establishment may submit establishment-specific data for multiple establishments.
||Number of Employees
|Dec. 15, 2017
|July 1, 2018
||Forms 300A, 300 and 301
|March 2 (2019 and beyond)
||Forms 300A, 300 and 301
The data an employer must submit and the timeline for submitting this information to OSHA depends on the establishment size.
Establishments with 250 or more employees will be required to submit information from their OSHA Forms 300A, 300 and 301. However, in 2017, these establishments will only be required to submit data from their 300A Form. Establishments in high-risk industries with between 20 and 249 employees will be required to submit information only from their OSHA Form 300A.
For the first reporting year, the deadline has been delayed to Dec. 15, 2017. However, the final rule that delayed the first deadline did not alter subsequent deadlines, so reporting deadlines for 2018, 2019 and beyond remain as shown in the table above.
Submitting the Report
The ITA is a secure website that OSHA created specifically for the data required by the electronic reporting rule. The ITA allows employers three options to submit their reports:
- Manual entry;
- Comma-separated value (CSV) file upload; and
- Application programming interface (API) transmission.
The ITA offers affected establishment instructions and sample files and templates to help them complete the submission process.
OSHA-approved State Plans
The final rule required OSHA-approved State Plans to adopt the electronic rule or “substantially identical” requirements within six months of the final rule’s publication date. The final rule was published on May 12, 2016.
This means that OSHA-approved State Plans have the authority to adopt reporting requirements that go above and beyond what is required by the federal rule. For this reason, establishments located in OSHA-approved State Plan jurisdictions should consult with their local OSHA offices to make sure they are satisfying all electronic reporting requirements.
However, the following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically:
- South Carolina
- New Jersey
- New York
Similarly, state and local government establishments in IL, ME, NJ and NY are not currently required to submit their data through the reporting website.
Contact Scurich Insurance or visit the OSHA tracking of workplace injuries and illnesses webpage for more information regarding electronic reporting.
A new law will require California employers with 20 or more employees to grant up to 12 weeks of unpaid, job-protected leave for employees to bond with a new child.
The New Parent Leave Act, enacted on Oct. 12, 2017, extends the state’s parental-bonding leave requirements, which currently apply only to employers with 50 or more employees, to smaller employers starting on Jan. 1, 2018.
The law will allow employees who are employed at a worksite where the employer has 20 or more employees within 75 miles to take parental leave within the first year after their child is born, adopted or placed with them for foster care.
California employers with 20 to 49 employees should become familiar with the new law and revise their leave policies as necessary to ensure compliance.
Employers Subject to the New Law
An employer is subject to the New Parent Leave Act if it:
||Has at least 20 employees working within 75 miles of each other; and
||Is not subject to the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA)
Thus, the New Parent Leave Act generally applies to all California employers that have between 20 and 49 employees.
Employees Entitled to Leave Under the New Law
Under the New Parent Leave Act, an employee will be eligible to take leave if he or she:
||Has more than 12 months of service for the employer;
||Has at least 1,250 hours of service with the employer during the previous 12 months; and
||Works at a worksite in which the employer has at least 20 employees within 75 miles.
In addition, an employee that wishes to take leave under the New Parent Leave Act must request and take the leave within the first year after:
||The birth of the employee’s child;
||The employee’s adoption of a child; or
||The placement of a child for foster care with the employee.
An employer may require at least 30 days’ advance notice when the need for leave is foreseeable due to an expected birth or placement of a child for adoption or foster care. If 30 days’ advance notice is not possible, an employee may be required to provide notice as soon as practicable. Employers must respond to an employee’s leave request no later than five business days after receiving it.
Before the start of an employee’s leave under the New Parent Leave Act, the employer must provide the employee with a guarantee of employment in the same or a comparable position following the leave. An employer that fails to provide this guarantee may be deemed to have unlawfully refused the employee’s leave request.
Employers are not required to pay an employee while he or she is on leave under the New Parent Leave Act. However, employees may use, and employers may require employees to use, any accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during a period of parental leave.
Like the CFRA and FMLA, the New Parent Leave Act requires employers to maintain and pay for continued group health coverage for an employee while he or she is on parental leave.
The health coverage must be continued at the same level and under the same conditions as those provided prior to a leave period. An employer may recover the costs of maintaining an employee’s health coverage if the employee fails to return to work following a parental leave period for any reason other than a serious health condition or circumstances beyond the employee’s control.
If both parents of a new child are employed by the same employer, the employer is not required to grant more than a total of 12 weeks of leave under the New Parent Leave Act. However, an employer may allow both employees to take up to 12 weeks of leave at the same time.
The New Parent Leave Act prohibits employers from:
||Interfering with, restraining or denying an employee’s rights under the law; and
||Discharging, fining, suspending, expelling, refusing to hire or discriminating against an employee for exercising his or her rights under the law, or for providing information or testimony in any inquiry or proceeding related to the rights guaranteed under the law.
If an employer violates the New Parent Leave Act, an affected employee may file a complaint with the California Department of Fair Employment and Housing (DFEH), which may order the employer to:
||Hire, reinstate or upgrade the employee, with or without back pay;
||Refrain from committing any further violations; and
||Pay a fine of up to $25,000 for any discrimination.
The DFEH may also file or grant an employee the right to file a civil lawsuit against an employer for violations of the New Parent Leave Act. Until Jan. 1, 2020, however, employers will have the right to request that all parties participate in mediation before an employee is allowed to file a lawsuit. An employer that receives a right-to-sue notice from the DFEH will have 60 days to submit a mediation request.
Interaction with Existing State Laws
Currently, the CFRA and the FMLA require California employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave for employees to bond with a new child born to, adopted by or placed for foster care with them. The New Parent Leave Act, which was signed into law on Oct. 12, 2017, will require smaller employers in California to provide the same leave.
Unlike the CFRA and the FMLA, however, the New Parent Leave Act will not require employers to provide leave for an employee’s own serious health condition or for the serious health condition of a family member.
Under another existing state law, California employers with five or more employees must grant up to four months of unpaid, job-protected leave to female employees who are disabled by pregnancy, childbirth or a related medical condition. Because of this, an employee cannot take leave under the CFRA for these conditions. Likewise, an employee will not be allowed to take leave for those conditions under the New Parent Leave Act.
However, an employee who works for an employer with 50 or more employees may take CFRA leave to bond with a new child (or to deal with a serious health condition) once her pregnancy disability leave ends. Under the New Parent Leave Act, employees who work for smaller employers will also be allowed to take parental leave after a period of pregnancy- or childbirth-related disability leave.
Contact Scurich Insurance or visit the DFEH website for more information on California’s leave laws.