What the end of the COVID public health emergency means for employers
Companies should consider their industry and their working environment before simply making changes and should continue to deal with requests for accommodation in accordance with best practices and the law.
On May 11, 2023, the nationwide COVID-19 public health emergency and the national emergency declaration, each first declared in early 2020, will officially end. The largest direct impact of the end of these emergencies will be felt in medical benefits.
Broadly, these declarations empowered the federal government to waive or mandate changes within Medicare, Medicaid, as well private insurance plans. With the expiration of these deadlines, private group health and individual health plans are no longer required to cover (free of charge) COVID-19 vaccines and COVID-19 tests or testing-related services.
In addition, the Departments of Labor and Treasury as well as the Internal Revenue Service, required ERISA plans to suspend specific notice, enrollment, and payment deadlines until 60 days following the end of the national emergency declaration.
With the declaration over, deadlines involving the 60-day COBRA election period, the 45/30-day COBRA payment period, and special enrollment periods will be “unpaused” effective July 10, 2023, and will revert to the pre-March 2020 deadlines.
Many healthcare plans may continue to cover COVID vaccinations or testing and plans may allow a longer window than July 10 to allow participants or beneficiaries to make elections. But employers should communicate with their plan providers and employees regarding the changes coming in late spring and early summer.
Employers should also review their COVID and office protocols to determine if they should make changes to their current policies. For instance, some employers require COVID testing in certain circumstances after exposure or infection.
If the employer’s health plan is no longer covering testing, the employer might consider reimbursement for testing or ending the company’s testing requirement. Or employers may wish to provide reimbursement for certain items regardless of any requirement under policy or practice.
Some employees who receive Medicaid or Children’s Health Insurance Program (CHIP) benefits may become ineligible or may become eligible absent timely re-enrollment. Employers should make non-enrolling employees aware that they can enroll in the company plan outside of the normal open enrollment window if they are losing these benefits. The Department of Labor has created a flyer to assist companies in communicating this issue to employees.
Employers may also want to use the end of the emergencies to consider whether specific policies should remain in effect. For example, from December 2021 through November 2022, New York City required private-sector employees (the public sector mandate expired in February 2023) to provide proof of vaccination.
Many employers, both inside and outside the city, required proof of vaccination, absent reasonable accommodation, for employees and visitors beyond the expiration of the mandate. While employers in New York (and most states) can still require vaccinations as a job requirement, some may choose to reconsider.
Similarly, some companies have never adjusted or modified certain COVID-related policies, such as pre-visit questionnaires for visitors/clients or certain leave/remote work policies related to COVID issues.
While companies should always seek counsel regarding the changing of certain policies, particularly leave policies, the expiration of the national emergencies has created a symbolic end to the COVID era within employment. As such, it is a logical time to make a change or to loosen certain requirements.
Related: Employers need to revisit coverage as end of COVID emergency approaches
Of course, there is no one-size-fits-all approach. Companies should consider their industry and their working environment before simply making changes and should continue to deal with requests for accommodation and other issues in accordance with best practices and the law.
Michael J. Passarella is a partner at Olshan Frome Wolosky in New York and heads its employment practice. He may be reached at mpassarella@olshanlaw.com.