#THETRUMPCARD

2021: Supply chain stalled by 72,000 truckers who failed strict drug tests. https://www.ibtimes.com.au/72000-failed-drug-tests-cause-massive-truck-driver-shortage-1766336 2021: A wholesaler CEO says he's having to turn down truckers in the labor shortage because they can't pass drug tests. https://www.businessinsider.com/trucker-shortage-ceo-cant-hire-driversdrug-tests-labor-shortage-2021-11 Drug and alcohol violations in 2021 outpacing 2020 numbers through first quarter The Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse has now been in effect for a year and a half, and through the first quarter of 2021, drug and alcohol violations are on pace to be higher than in 2020, according to data from FMCSA available through March. As of April 1, there were more than 2.1 million users registered in the Clearinghouse, including truck drivers, fleet representatives, consortia/third-party administrators (C/TPAs), medical review officers (MROs) and substance abuse professionals (SAPs). While none of the regulations regarding drug and alcohol testing and reporting have changed, the Clearinghouse is starting to make it easier for fleets to conduct pre-employment screenings of their drivers. Jared Rosenthal, founder and CEO of drug consortium Health Street, said fleets are required to look back three years when hiring a new driver. Prior to the Clearinghouse, this has required reaching a driver’s previous employers to get their drug testing records. Now, for at least half of the required time period, that is done with a simple query of the driver’s CDL number in the database. https://www.ccjdigital.com/workforce/driver-regulations/article/15066194/truck-driver-drug-alcohol-violations-in-2021-outpacing-2020 2019: Guidance on Clearinghouse registration requirements for drivers. Q&A Are CDL drivers required to register for the Clearinghouse? Guidance: Drivers are not required to register for the Clearinghouse. However, a driver will need to be registered to provide electronic consent in the Clearinghouse if a prospective or current employer needs to conduct a full query of the driver’s Clearinghouse record—this includes all pre-employment queries. See 49 CFR 382.703(d). A driver must also be registered to electronically view the information in his or her own Clearinghouse record. See 49 CFR 382.709. Registered drivers will have their Clearinghouse accounts and contact preferences set up, allowing them to quickly respond to query requests from employers. Registration is available at https://clearinghouse.fmcsa.dot.gov/register. Regulatory Topic: Guidance on Clearinghouse registration requirements for drivers Published Date: Tuesday, January 8, 2019 Issued Date: Tuesday, January 8, 2019 https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/are-cdl-drivers-required-register-clearinghouse 2021 FMCSA makes new rule to downgrade licenses after alcohol and drug violations. October 19, 2021. 2022: The truckers go to war.. Dietrich Bonhoeffer argued that stupid people are more dangerous than evil ones. This is because while we can protest against or fight evil people, against stupid ones we are defenseless — reason fall on deaf ears. Starting on November 8, 2021, a new rule established by the Federal Motor Carrier Safety Administration (FMCSA) will take effect, requiring truck drivers who have a positive drug or alcohol test results to have their licenses downgraded. With this new rule, the FMCSA plans to amend its regulations to establish requirements for state driver’s licensing agencies (SDLAs) to access and use information in the Clearinghouse. Additionally, as of November 18, 2024, states will be prohibited from issuing, renewing, upgrading or transferring commercial driving licences (CDL) and commercial learner’s permits (CLP) for drivers prohibited from driving a commercial vehicle due to one or more drug or alcohol violations. https://datac.ca/fmcsa-makes-new-rule-to-downgrade-licenses-after-alcohol-and-drug-violations/ 2020: Mandatory Guidelines for Federal Workplace Drug Testing Programs. A Proposed Rule by the Health and Human Services Department on 09/10/2020. https://www.federalregister.gov/documents/2020/09/10/2020-16432/mandatory-guidelines-for-federal-workplace-drug-testing-programs 2020: Hair testing for drugs would ground 300K truck drivers in U.S.: Researchers. https://www.trucknews.com/health-safety/hair-testing-for-drugs-would-ground-300k-truck-drivers-in-u-s-researchers/1003142878/ A high-level highlight of the Canadian Model, DOT regulations, and any other pertaining regulations. Canadian Model for Providing a Safe Workplace: Alcohol and Drug Guidelines and Work Rule The COAA Model represents a collaborative approach to the development and implementation of a standardized alcohol and drug policy for construction industry stakeholders. This Model provides best practices to act as a guideline for running a drug and alcohol testing program. Most recently updated on July 1, 2018, the COAA Model closely follows the standards and procedures outlined in the US DOT (CFR 49 Part 40) for alcohol and drug testing. Notable exceptions to this mirroring of the US DOT Model are the inclusion of lab-based oral fluid testing (but not instant oral fluid) as a potential matrix for testing, and the exclusion of random testing as a requirement. U.S. Department of Transportation (DOT): Procedures for Transportation Workplace Drug and Alcohol Testing Programs The U.S. Department of Transportation (DOT) Model provides a comprehensive set of procedures and standards for alcohol and drug testing. Adherence to this model is a requirement for any transportation company that crosses the Canadian/U.S. border as part of their business. Closely mirrored by the COAA Model, notable differences are the mandatory use of lab-based urine testing for all test reasons as well as mandatory random testing for all drivers that fall under these regulations. https://news.danatec.com/dot-non-dot-and-the-canadian-model-for-drug-and-alcohol-testing-whats-the-difference-85797/ Are CDL drivers required to register for the Clearinghouse? FMCSA-D&A-CLEAR-382.703-FAQ003 tmw.docx Form CG2132 (05/09) The Return of the Clause.. Communicable Disease Exclusion - Marsh #THETRUMPCARD 2020: The Return of the Communicable Disease Exclusion In the time of COVID-19, many insurance carriers are seeking to clarify coverage for biologically-related liability risks on commercial insurance policies. There is a stark increase in carriers implementing or strongly considering applying communicable disease exclusions on general liability policies in response to the pandemic crisis. Although some policies already contained some communicable disease-related exclusionary wording, it was more prevalent with excess and surplus carriers (carriers not regulated by the state), but not anymore. WHAT IS THE COMMUNICABLE DISEASE EXCLUSION? Form CG2132 (05/09), communicable disease exclusion is an overt removal of general liability coverage for the transmission of communicable disease. Originally the exclusion was created by ISO (Insurance Services Organization) in response to diseases such as the avian flu, SARS, and those caused by rotaviruses. Although the exclusion does not explicitly name any viruses, it suggests that COVID-19 would fall under the umbrella of communicable disease. The actual exclusion wording is below: “Bodily injury” or “property damage” arising out of the actual or alleged transmission of a communicable disease. This exclusion applies even if a claim against any insured alleges negligence or other wrongdoing in the: Supervising, hiring, employing, training, or monitoring of others that may be infected with and spread a communicable disease; Testing for a communicable disease; Failure to prevent the spread of the disease; or Failure to report the disease to authorities. The application of this exclusion impacts coverage for insureds in all industries. The potential claims examples where this exclusion would come into play are vast. For example, a retail establishment or building owner could be sued by a client/customer who alleges contracting COVID-19 on their premises and that proper sanitation protocols were not followed to prevent it. This exclusion removes the insurance company from their obligation to defend the claim (incurring defense expense), investigate the alleged negligence/transmission, and indemnifies that customer (third party) who incurred the alleged bodily injury. In the absence of a communicable disease exclusion, there is a question of whether the current commercial general liability form would cover a communicable disease-related claim. Would a claim of this nature qualify as an “occurrence” under the existing form definition? Can an insured be held legally liable for disease transmission per the conditions of the policy? How can one identify that a virus was contracted at a specific time, date, and place on an insured’s premises? Many believe that an overt exclusion clearly relieves the insurance carrier from coverage, for either actual or alleged transmission. Ultimately, many believe that the exclusion shields the carrier’s duty to defend and incur defense expenses associated with communicable disease claims. With so many uncertainties surrounding COVID-19 insurance coverage, one thing is clear: the prevalence of the communicable disease exclusion will increase into 2021 in response to the pandemic. POTENTIAL LEGISLATION Outside of the exclusion, the current administration is exploring a proposal to provide legal immunity for businesses regarding their liabilities associated with COVID-19. This could help provide a legal barrier for COVID-19 third-party claims/allegations, supporting the insurance exclusion. There is also dialogue on a federal level for a potential Pandemic Risk Insurance Act (PRIA), which is a similar response to the terrorism insurance act after 9/11. The PRIA could provide federal reinsurance for business interruption losses arising out of defined “pandemics.” Coverage would be optional as with TRIA and could potentially alleviate insurance carriers’ exposure to national crises such as pandemics via a federal backing. Overall, government and insurance carriers’ response to this pandemic is a work in progress and will continue to evolve. Brokers and policyholders must be aware of the communicable disease exclusion and whether it applies under their specific insurance program to understand the risk to their clients or their operations. Ideally, the absence of an exclusion is always preferred. Please consult your broker advocate to discuss the impact and concerns further. Resources and References: Coronavirus and the CGL, opens in a new windowwww.insurancejournal.com/blogs/big-i-insights/2020/03/25/562354.htm The Coronavirus and the CGL Policy, opens in a new windowwww.irmi.com/articles/expert-commentary/coronavirus-and-the-cgl-policy Businesses Want Virus Legal Protection. Workers Are Worried., opens in a new windowwww.nytimes.com/2020/06/12/business/economy/coronavirusliability- shield.html Lawmaker Details Federal Reinsurance for Pandemic Business Interruption, Event Losses, opens in a new windowwww.insurancejournal.com/news/national/2020/05/27/570002.htm https://youtu.be/ww47bR86wSc The Return of the Communicable Disease Exclusion October 5, 2020. https://www.psfinc.com/articles/the-return-of-the-communicable-disease-exclusion/ 2020: Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage. Some industry watchers predict ‘a tidal wave of litigation’ over whether policies should cover losses due to coronavirus closures https://www.washingtonpost.com/business/2020/04/02/insurers-knew-damage-viral-pandemic-could-wreak-businesses-so-they-excluded-coverage/ What if My Policy has a Virus Exclusion Clause? (#Bloodsucker) For at least fifteen years, commercial insurers have been excluding coverage for viral and bacterial infestations from their business interruption policies. Many New York businesses that are now looking to their commercial insurance to cover losses from COVID-19 enforced shutdowns are concerned. Their fear is this exclusion will preclude their ability to recover any insurance reimbursement for those losses. https://www.douglasandlondon.com/business-interruption-insurance-denial-claims/covid-19/what-if-my-policy-has-a-virus-exclusion-clause/ Insurers adding pandemic exclusions in commercial policies that go beyond just BI. https://news.danatec.com/dot-non-dot-and-the-canadian-model-for-drug-and-alcohol-testing-whats-the-difference-85797/ Assembly Bill A10226B 2019-2020 Legislative Session Relates to requiring certain perils be covered under business interruption insurance during the coronavirus disease 2019 (COVID-19) pandemic. https://www.nysenate.gov/legislation/bills/2019/a10226 ISO Communicable Disease Exclusion – Drafting History https://www.londonfischer.com/covid-19-response/coverage-for-business-interruption-from-covid-19/05.06.20-ISO-Communicable-Disease-Exclusion-Drafting-History.pdf https://www.pvnccdsb.on.ca/wp-content/uploads/2020/09/2020-2021-Communicable-Disease-Exclusion.pdf