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Federal Guidance for Employers on COVID-19 Testing

08.25.2020

Under the Families First Coronavirus Response Act — as well as certain provisions of the Coronavirus Aid, Relief, and Economic Security Act — private insurers must provide free COVID-19 tests to covered individuals. But don’t be surprised if you hear complaints from employees who have been hit with surprise medical bills for testing. “There are gaps in these federal protections that may expose patients to unexpected medical bills,” one expert recently told Kaiser Health News.

Regulatory and clinical guidance continues to emerge to help employers address urgent policy and financial questions about testing employees for COVID-19. Meanwhile, anecdotal evidence suggests that employers need to be careful about incurring excessive costs for such tests.

Recent guidance

One round of guidance issued jointly by the IRS, Department of Labor, and Department of Health and Human Services reaffirms that self-insured employers have the same obligations concerning “free” (to employees) COVID-19 testing as employers with fully insured plans.

A second round of guidance, issued in Q&A format, maintains that employees cannot be charged for diagnostic COVID-19 tests when symptoms are present or when an employee has been exposed to someone with the virus. However, the guidance clarifies that employees can be charged (at the employer’s discretion) for what the agencies describe as “surveillance or employment purposes.” These include general screening tests or tests required of employees before they’re permitted to return to work.

Who determines medical appropriateness?

The guidance modified the agencies’ earlier eligibility standards for free diagnostic testing. Originally, testing was eligible for free coverage “when medically appropriate for the individual, as determined by the individual’s attending health care provider.” Under the latest guidance, an “attending health care provider” doesn’t need to be an employee’s regular doctor or even a physician “directly responsible for providing care to the patient.” Rather, any provider that “makes an individualized clinical assessment to determine whether the test is medically appropriate” qualifies.

Also, the guidance expands on the kinds of COVID-19 tests that satisfy the legally mandated test quality standards. Employers and health care plans don’t have a blank check to use the cheapest test available, however; detailed criteria are included. On the other hand, employers and health plans need to be wary of potential abusive test-pricing practices — even among testing centers that meet the standards. (See “Lab test prices: From bargains to abusive” below.)

Additional highlights

The latest guidance addresses a variety of other important issues. For example, the number of tests employees can receive without charge is unlimited — as long as they satisfy other eligibility requirements.

Tests conducted by a health provider that’s not in the employer-provided health care plan’s network are also covered by the “free tests” requirement. Employers can still use the same out-of-network pricing adjustments for other medical services, such as treatment of COVID-19.

The free COVID-19 test mandate applies only during the currently declared “emergency period.” The guidance states that employers must give employees a heads-up “within a reasonable timeframe” when the emergency period is ending and employees will no longer have access to free COVID-19 tests.

Input from the CDC

Shortly after the agencies’ regulatory guidance was issued, the Centers for Disease Control (CDC) issued a document with health-related “considerations for non-healthcare workplaces” with respect to COVID-19 testing.

Not surprisingly, the CDC urges employers to have employees showing symptoms characteristic of COVID-19 to be tested promptly, as well as those who have “been in close contact [within six feet] with someone who has COVID-19” for at least 15 minutes.

What about employees who haven’t been exposed to the virus, or at least aren’t known to have been exposed? The CDC’s guidance focuses on work settings where social distancing isn’t possible as well as on remote settings where medical treatment might be delayed with more severe consequences for the employee.

In those settings, “initial testing of all workers before entering a workplace, periodic testing of workers at regular intervals, and/or targeted testing of new workers or those returning from a prolonged absence” is recommended, because employees with COVID-19 may not show any symptoms.

The CDC punted on how employers should decide when to allow employees who have been in self-isolation at home to return to work. That testing strategy, says the agency, should be “made in consultation with health care providers and public health professionals.” However, employers should review local and federal employment laws before embarking on a testing procedure for such employees. In some jurisdictions, requiring testing may be deemed discriminatory.

Employers who may want to carry out routine testing of all employees might be justified in doing so, according to the CDC, “if these goals are consistent with employer-based occupational medical surveillance programs” and “have a reasonable likelihood of benefitting workers.” Also, employers need to receive assurances from their labor attorneys that a surveillance program wouldn’t violate the Americans With Disabilities Act or invite scrutiny from the Equal Employment Opportunity Commission.

Another layer

The pandemic has added another layer of complexity and costliness to keeping employees safe. Work closely with your professional advisors to ensure you comply with the applicable laws while tracking and managing the associated costs wisely.

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