President Biden signed into law a House bill on April 10 that immediately ended the COVID-19 presidential declaration of national emergency established in March 2020. The COVID-19 federal public health emergency—a separate declaration by the Secretary of Health and Human Services from January 2020—remains in effect for now. However, based on comments from the Biden administration, that too is set to expire on May 11. As such, employers may wish to take stock of their COVID-19 policies and reevaluate those that touch on benefits, vaccine and testing requirements, and other safety measures.
The biggest impact of the end of the emergency declarations will be the changes to COVID-19 medical benefits. Morgan Lewis recently summarized these changes and the next steps for plan sponsors. Employers should be prepared to respond to inquiries from employees regarding changes in coverage and related deadlines.
The end of the presidential declaration of national emergency will likely have the greatest impact on COBRA qualified beneficiaries. Any suspended time frames for electing and paying for COBRA coverage are currently set to end 60 days after the end of the national emergency (Outbreak Period). However, the US Department of Labor has provided verbal, informal guidance to stakeholders indicating their intention to end the Outbreak Period on July 10, 2023, consistent with earlier guidance. Given this uncertainty, and for administrative ease, plan sponsors may decide to extend the suspended timeframes through the end of the calendar year.
If the public health emergency ends as expected in May, many workers who had qualified for Medicaid may no longer qualify, depending on where they live. Moreover, healthcare plans will no longer be required to cover COVID-19 testing and vaccines without cost sharing (i.e., co-pays and deductibles), prior authorization, or other medical management requirements. Employers may see an increase in requests to join employer health benefit plans and additional employee inquiries regarding coverage that their benefit teams should be prepared to address.
With the end of the emergency declarations, many employers are reevaluating COVID-19 testing programs. In evaluating any existing employer COVID-19 testing program, employers may wish to consider whether testing is job related and consistent with business necessity under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC) had taken the position that testing is always job related and consistent with business necessity when it adheres to recommendations from the Centers for Disease Control (CDC), Food and Drug Administration (FDA), and/or public health authorities. Morgan Lewis previously analyzed the EEOC guidance, along with the CDC’s updated testing guidance. With the lifting of the emergency declarations, the EEOC may change its assessment.
Employers may also wish to consider the practical hurdles, such as whether any new financial costs to employees for testing—which were previously covered by insurance—will need to be paid under state or federal wage and hour law. Additionally, employers may wish to look at the type of test that they are requiring and whether employees will have access to such tests in the time window that the employer’s policy requires. For example, insurance may now implement new preauthorization requirements before covering a COVID-19 PCR test, which could add to the time it takes to get a PCR test before returning to work.
In light of the end of the emergency declarations, some employers are revisiting safety measures put in place during the pandemic, including, especially, vaccine mandates. While the end of the declarations does not require employers to end their vaccine mandates, many employers are using this moment to end their requirements and return to a “strong encouragement” approach—namely, telling their employees that they strongly encourage all employees to remain up to date with their COVID-19 vaccines.
If a company ends its vaccine mandate, unvaccinated former employees who resigned or were terminated may seek rehire. Applicants for rehire should be evaluated on a case-by-case basis, as there are many issues that must be considered when determining whether to rehire a former employee, including, for example, the availability of open positions, policies on rehiring employees who were terminated, etc.
Moreover, to the extent employees who could not be vaccinated are receiving accommodations, employers may wish to consider whether the particular accommodation and any restrictions in place are still necessary after a vaccine requirement is lifted (and in light of the aforementioned EEOC guidance).
Although most states have removed their COVID-19 emergency declarations, employers should still ensure they are compliant with all state and local regulations, including legislation on paid sick leave related to COVID-19. For example, California’s CAL/OSHA, which has jurisdiction over private worksites in California, recently approved a COVID-19 Non-Emergency Standard, which will continue to apply regardless of whether a public health emergency is in place at the federal level.
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