On May 11, the U.S. Department of Health and Human Services (HHS) rescinded the COVID-19 public health emergency (PHE). That decision followed the non-renewal of the national emergency declaration (NE) in April. The PHE and NE both had been in effect since early 2020, collectively authorizing the federal government to manage the pandemic, including by providing individuals with tests, treatments, and vaccines at no charge. The lapse of these emergency orders usher in a new stage of managing COVID-19 and will impact employers of all sizes on the Seacoast significantly.
While most employers have been operating with a somewhat static approach to COVID-19 over the past year, the end of the PHE and NE offer employers an opportunity to re-evaluate and reassess COVID-19 procedures and precautions in the workplace. This article will cover how the end of the PHE and NE changes the COVID-19 landscape for employers as well as practical steps employers should consider moving forward.
What Changes as a Result of the End of the Public Health Emergency and National Emergency Declaration
- Diagnostic Over-the-Counter and Laboratory Testing: Under the PHE, health insurance plans were required to fully cover laboratory or over-the-counter COVID-19 testing without employee cost-sharing. With the PHE lapsed, that requirement is lifted, though the Biden Administration is encouraging private insurers to continue covering such costs voluntarily. Therefore, plans may begin imposing cost-sharing requirements for COVID-19 diagnostic testing.
- COVID-19 Vaccinations: Most private insurers continue to be required to provide COVID-19 vaccinations when such services are provided by in-network—though not out-of-network providers—as they are considered a preventive health service. Therefore, employer-sponsored insurance must still cover COVID-19 vaccinations for now.
- Extended COBRA Deadlines: During the pandemic, health plans have been required to toll various administrative deadlines until the earlier of (a) one year from when an individual was first eligible for deadline relief; or (b) sixty (60) days after the end of the NE. Accordingly, plan participants have generally had one year to elect COBRA coverage, pay COBRA premiums, or notify a plan of a disability determination or a COBRA-qualifying event. Tolling of relevant deadlines will end sixty (60) days after the end of the NE (i.e., July 10, 2023).
Notably, federal employees and contractors, international travelers, head start educators, and CMS-certified facilities are no longer subject to COVID-19 vaccine requirements.
In addition, on May 15, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued a number of updates to its ongoing COVID-19 technical assistance. The updates include the addition of a new question underscoring that the end of the PHE does not mean employers can automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances. Rather, employers are encouraged to engage with impacted employees to assess whether there continues to be a need for reasonable accommodation based on individualized circumstances. The technical assistance also advises employers to remain alert to COVID-19-related harassment, such as harassing an applicant or employee with a disability-related need to wear a mask or take other COVID-19 precautions or require religious accommodations.
Practical Guidance for Employers Moving Forward
Now that the federal COVID-19-related emergency orders have lapsed, employers should consider taking the following actions:
- Review and consider updating COVID-19-related safety policies, such as mandatory vaccination or testing requirements or other precautionary measures for employees, visitors, or others.
- Confirm with private health insurance carriers how they plan to assess costs for COVID-19 testing and vaccines and consider whether to voluntarily cover such costs, as needed.
- Partner with private insurance carriers to develop a plan for updating participants regarding the impact on relevant deadlines.
- Prepare to receive applications or employment inquiries from individuals who may have been terminated as a result of then in effect COVID-19 requirements, such as mandatory vaccination policies.
- Consult with employment counsel regarding framing an approach to the review of relevant policies and practices.