New year, new COVID strain, new tests

On Thursday, January 13 the Supreme Court ruled that the Occupational Safety and Health Administration (OSHA) exceeded its authority in requiring employees of large private employers to either be vaccinated or test weekly.

This decision came after FDA acting Commissioner Janet Woodcock told Congress on Tuesday January 11 that “most people are going to get COVID.”

Employers must now imminently reconcile this Supreme Court decision, the FAQs released by the Departments of Labor, Health and Human Services (HHS), and the Treasury (the Departments) on January 10 pertaining to at-home COVID-19 tests and their existing COVID-19 protocols and health benefit plan provisions.

Employers still will need a comprehensive COVID-19 strategy, however, even though the vaccine-or-test rule has been blocked by the Supreme Court. Regardless of a mandate, implementation of COVID-19 policies, as well as the necessary health benefit plan updates, is critical for the health and welfare of employees, their families, and the employer.

Are employers prepared for this task?

Employer considerations

To be successful, employer protocols should address the competing roles and functions their employees undertake. Policies must be thoughtfully designed to ensure employees remain safe and the business continues to operate as seamlessly as possible. Maintaining this balance may require evaluation of the individual employee and company risk profiles.

Workplace factors

Concerns surrounding COVID-19 create continued anxiety for employees. In the workplace employees want to know protocols are in place to keep them safe and healthy. Employees need clear and concise parameters that outline the expectations for the workplace. For example, does the employer have rules as it relates to travel? If so, are they limited to international travel or do they extend to domestic travel? Does the company have a policy for business-related travel?

In addition to travel does the company impose any screening requirements like temperature checks or health screening questions? Even without a mandate has the company decided to implement any testing or vaccination requirements? Has the employer outlined procedures for what happens if there is positive COVID-19 test, an employee is exposed to someone who has tested positive for COVID-19, and importantly what steps must be followed for the individual to subsequently return to work?

Ensuring the safety of employees is important, but this requires preparation – which may come at a cost to companies. The timing of Omicron and newly released regulations require immediate action. This urgency demands that employers designate an individual or team to digest the many complicated rules, design compliant strategies, implement these strategies, track, and document compliance, and then pivot the approach as the regulations evolve.

External factors

Supplemental to workplace concerns employees often have external factors to balance. For example, if the employee has children in daycare, a roommate, or a partner who works outside the home there may be layered COVID-19 protocols to untangle. Schools and daycares developed COVID-19 safety protocols to protect students, and these generally vary based on student age and vaccination status. These are relevant to the employer as the guidelines have the potential to conflict or confuse underlining employment procedures for an employee.

As a result of the varied mandates, requirements, and quarantine parameters this has the potential to cause additional frustration for employees and employers. Considering the seemingly transmissible nature of the Omicron variant it is likely that a positive COVID-19 test will trigger application of multiple COVID-19 protocols and generate confusion. These discussions create another opportunity for employers to collaborate with employees to balance both internal and external safety concerns.

Employer action plan

To mitigate costs, avoid surprises, and ensure a safe workplace, employers need to detail the company COVID-19 strategy and policies. These should be documented and communicated with staff. Further, existing corporate policies should be reviewed to ensure implementation of the new protocols does not create conflicting obligations for employees or the employer.

Health plan considerations

Despite the blocked mandate and beyond employment and safety considerations, employers must review their health benefit plan to ensure it accurately addresses the ongoing regulatory benefit coverage requirements. To start, employers should review their existing COVID-19 benefit coverage requirements.

COVID-19 plan benefits

As enacted in March 2020, the Families First Coronavirus Response Act (FFCRA) requires coverage of certain items related to the testing or diagnosis of COVID-19 without any cost-sharing requirements, prior authorization, or medical management protocols. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), also enacted in March 2020, amended the FFCRA to address reimbursement rates for diagnostic testing and expand the range of eligible services that must be covered without cost-sharing. These provisions remain in effect during the national emergency related to COVID-19.

A properly drafted health benefit plan should already address these benefit provisions. Specifically, the current version of the employer’s health benefit plan should outline coverage for COVID-19 diagnostic tests and preventive services throughout the emergency period. The health benefit plan should be clear as it relates to coverage for the treatment of COVID-19, inpatient quarantines, and telehealth. Importantly the health benefit plan should include information about the tolling of certain timeframes because of the pandemic.

At-home COVID-19 tests

In early FAQs released by the Departments it was noted that health benefit plans would need to cover at-home tests when ordered by an attending provider who had determined the test was medically appropriate for the individual and the test met statutory criteria. In June 2020 when the FAQ was released, FDA authorized at-home COVID-19 tests were not available. Now, at-home diagnostic COVID-19 tests are available both by prescription and over-the-counter (OTC).

With the FDA’s approval of at-home OTC tests, the Departments issued updated guidance on January 10 to address required plan coverage of OTC COVID-19 tests. Specifically, plans must cover certain OTC COVID-19 tests without cost-sharing, prior authorization, or other medical management requirements, obtained without a health care provider being involved. This means the tests must be covered without an order or individualized clinical assessment, but coverage is not extended to OTC COVID-19 tests for employment purposes.

The FAQs outline protocols for plans to utilize as it pertains to coverage and reimbursement of these tests which should be incorporated to the plan’s coverage policies. Additionally, the Departments established a safe harbor provision to facilitate access and provide a seamless experience in obtaining free OTC COVID-19 tests during the public health emergency. These new rules do not modify existing rules for tests administered with a provider’s involvement.

The guidance, which took effect January 15 did establish a limit on the number of OTC COVID-19 tests eligible for coverage per individual as no less than 8 per 30-day period or calendar month. This may be useful for employees if members of the household encounter exposure to an individual who tests positive for COVID-19 and must test multiple times to return to daycare, school, or the office setting.

Plans must provide coverage (and reimbursement) as of tests purchased on or after January 15, so addressing this plan change is critically important. Note that an employer can voluntarily extend coverage for tests purchased prior to the January 15 date without a provider order or individualized clinical assessment.

Next steps

With the regulations and changing, rules plan language and company protocols for the 2022 plan year must be reviewed, and potentially updated. The Departments do permit amendment of plan terms to add benefits or reduce cost-sharing without regard to the generally applicable mid-year or plan modification requirements.

To ensure compliance, review plan language now to make sure the provisions comply. Additionally, take care to update current company policies to align with the employer’s COVID-19 strategy to keep the employees safe and company moving forward.

Jennifer M. McCormick joined The Phia Group, LLC as corporate counsel in 2008. As the Senior Vice President of Phia Group Consulting, Attorney McCormick concentrates on a variety of healthcare and regulatory issues facing employee benefit plans and their administrators. As Senior Vice President of Phia Group Consulting, she focuses on health benefit plan regulatory compliance services, including but not limited to self-funded health plan consulting, health plan exclusions, health plan limitations, health plan revisions, defining key items such as usual and customary fees, and the entire health plan summary plan description and summary of benefits and coverage.