Insurers brace for employers’ liability claims as Covid and flu ‘twindemic’ ramps up

Insurers could find themselves facing an uptick in employers’ liability claims following a new year surge of Covid-19 and flu cases - dubbed the “twindemic”.

Since early January 2023, newspapers such as the Daily Mail have reported on ministerial discussions around the possible reintroduction of Covid-era measures - such as wearing face masks in public places, social distancing and working from home - to help mitigate the spread of viruses and relieve pressure on the National Health Service (NHS).

A bulletin published by NHS England on 6 January 2023 revealed that in the week leading up to New Year’s Day (1 January 2023), there were 5,105 patients with flu in general and acute hospital beds - up from 3,479 the prior week.

This compares to just 38 cases of flu in general and acute beds for the same week in 2021/2022.

The NHS’ weekly data further showed that the number of hospital patients with Covid-19 in the week to 1 January 2023 rose by almost 1,200 versus the previous week, with an average of 9,390 patients in hospital with Covid-19 every day.

Professor Sir Stephen Powis, national medical director at the NHS, said: “We knew this winter would be one of the most difficult in the history of the NHS and I want to thank staff for all their hard work in caring for and treating so many patients while dealing with record demand on services, including the enormous pressure from flu and Covid.”

Following the publication of these figures, the UK government announced on 10 January 2023 that it would be testing airport arrivals from China for new strains of Covid-19.

Equally, on 2 January 2023, the UK Health Security Agency released a back to school update for parents which warned that Covid-19 and other viruses were circulating “at high levels”.

Jonathan Mitchell, member of the Forum of Insurance Lawyers’ (Foil) retail team and partner at DAC Beachcroft, told Insurance Times: ”It is important to note that the emphasis [from ministers] appears to be on guidance at present, but insurers will need to be alive to the risks of claims if guidance is not followed.”

He added that although Covid regulations have not formally been in place since 2021, Covid-19 and flu continue to be a risk that must be effectively managed by workplaces.

To mitigate employers’ liability claims, for example, Mitchell noted that companies may observe working from home models to prevent contamination or illness self-certifying.

He continued: “In reality, this is probably no different to arrangements prior to the pandemic.

”There is, however, flexibility for employers to develop and adapt control measures [to be] specific for their needs. If new guidance is given, it would be a brave employer [that] chose not to follow any updated guidance without having first considered the risk.

“Of great importance is that the prevalence of various transmittable respiratory diseases in the community will make it incredibly difficult for an employee to demonstrate that they caught a virus in the workplace and to establish a breach of duty [by the employer].”

Mitchell stressed that although many employers have adopted a hybrid working strategy - which combines office-based and homeworking each week - if government advice is updated about reintroducing Covid style prevention measures, “employers will need to consider existing working risk assessments and ensure they are up to date”.

Market innovation

Others market commentators, however, believe that innovation will be key in managing the current Covid and flu uptick.

Dan Martin, insurance consultant at Altus, said: “Market innovation will be key to embracing the potential rise in demand for private health provision and [to] help meet supply constraints.”

For example, he noted that telemedicine may prove useful - this includes app-based, virtual general practitioner services, such as Babylon Health and Push Doctor, which utilise connected data monitoring.

Pressure on health insurers 

Twindemic-related pressure on the NHS could see more Brits buying health insurance or making claims via these policies or self-funded provisions if they are left waiting for medical appointments.

Martin cited data from the Office for National Statistics, published in December 2022, which found that 13% of adults are paying for private medical care, with 5% using private insurance and 7% simply paying for the treatment themselves.

The twindemic could also see insurers return premiums to policyholders - for example, in June 2022, Aviva returned £81m to eligible private health insurance customers to compensate for delayed treatments.

Meanwhile, Matt Carter, practice director of Altus’ specialty markets team, noted that insurance has been stress tested throughout the Covid-19 pandemic and, therefore, “has its house in order” with regards to remote working.

Carter added: ”The support [insurance] provides now is very much business as usual in respect of cover elements – the business interruption debacle has, after some very poor press, provided some greater clarity of cover requirements. Any new social distancing measures are likely to be nothing new.”

Graeme Trudgill, executive director of Biba, concluded: “Brokers are experts at managing risk and will adapt accordingly to whatever circumstances arise, as they did before.”