Skyrocketing case numbers have us back to writing about COVID-19 again. This week, we are focused on testing. We're big fans of coordinated national testing and a contact tracing strategy. More testing and tracking should help control the spread of the virus. It might get the American economy stabilized. Most importantly, it seems to be the key to getting regular, AKA out-of-the-house, school open as soon as possible!
But this a nerdy employee benefits blog. We don’t want to bore our friends with rants about the self-evident. Instead, we’d like to discuss the nuances involved with workplace testing. What is allowed according to workplace discrimination and group health plan requirements, what’s not allowed, and what is optional? To make things extra special, we also will cover who has to pay for what.
When it comes to COVID-19 tests and employment, there are some different standards for the two different types of tests—a diagnostic test to detect an active presence of the COVID-19 virus, and a test to detect the presence of COVID-19 antibodies. These are also called a SARS-CoV-2 serology test or COVID-19 serology test. Some of the rules are the same, but not all of them. So, to help you friends out, we’ve divided the requirements into two parts. Within that framework, here’s what employers can, cannot, and may be able to do, specific to each test.
According to the Equal Employment Opportunity Commission, individuals in the workplace with the virus are a direct threat to others. So, employers may require employees to take a diagnostic test to determine if they actively have COVID-19. Such testing can be a return-to-work condition, or a regular employment practice (such as routine testing for medical care providers). Similarly, employers can require temperature checks, or a medical screening to ascertain active COVID-19 risks. They can also require employees with symptoms to stay home, even before the confirmation of COVID-19 infection.
All group health plans, which means both fully-insured and self- and level-funded plans, also must cover COVID-19 diagnostic testing free of cost-sharing and other coverage requirements like preauthorization. Multiple tests and even an in-home test must be included as long as a healthcare provider orders it for COVID-19 diagnostic purposes. Appropriate facility fees fall under the scope of the testing mandate too. As new federal FAQs say,
"If an individual is treated in the emergency room and the attending provider orders a number of services to determine whether a COVID-19 diagnostic test is appropriate, such as diagnostic test panels for influenza A and B and respiratory syncytial virus, as well as a chest x-ray, and ultimately orders a COVID-19 test, the plan or issuer must cover those related items and services without cost-sharing, prior authorization, or other medical management requirements, including any physician fee charged to read the x-ray and any facility fee assessed in relation to those items and services."
If an employer does require COVID-19 diagnostic testing of employees or other types of workplace screening, they cannot do so on a discriminatory basis. Just like all things employee-benefit related, classes of employees need equal and consistent treatment.
Carelessness when it comes to medical information an employer gets through work-related COVID-19 screenings and testing is also intolerable. Any screening data is confidential and a protected medical record according to the Americans with Disabilities Act (ADA). Storage needs to be in a secure location separate from the employee's personnel record. Most disclosures are prohibited, but an employer can share COVID-positive test results with public health agencies. They can also share positive results with a temporary staffing firm or another contractor that places employees with the employer on an interim basis for safety reasons.
A group health plan may cover the cost of work-related COVID-19 diagnostic testing, but standard cost-sharing and plan requirements may apply. Alternatively, the employer can provide the tests directly through a worksite clinic or other arrangement. Recent guidance has made it clear that workplaces that simply provide COVID-19 diagnostic tests do not create a separate group health plan arrangement according to ERISA.
All group health plans must include coverage of any antibody testing for diagnostic purposes deemed necessary by the medical care provider. If a group health plan participant seeks medical care, and the attending provider thinks the person needs antibody testing to rule out or confirm COVID-19 infection, the plan must cover as many tests as the provider deems necessary. The tests must appear "free" to the health plan participant, and there can't be any conditions attached like a preauthorization requirement.
An employer cannot require employees to take a COVID-19 antibody test before they return to work or at any time. New rules from the EEOC expressly prohibit it since it constitutes a medical examination under the ADA.
If a group health plan participant wants or needs to get a COVID-19 antibody test for another reason, including for informational purposes, the health plan may cover it. Cost-sharing or any other plan requirements may apply.
If an employer wants to offer access to “free” or pre-paid antibody tests through a worksite clinic or other testing site, they can do so, as long as the testing is not mandatory. Any worksite COVID-19 test site will not be considered a group health plan, according to ERISA. As long as the clinic is limited to coronavirus testing, it’s always considered an excepted benefit.
That’s just about all we know about COVID-19 testing at work in a nutshell. Our only other bit of wisdom to share today is that one of us did have the nasal swab test given through the car window a few weeks ago. While we were grateful for negative results, the test itself was both painful and disturbing. We do not recommend the drive-through experience for any children or any even slightly squeamish adults. We hope that all of our readers can avoid the need for one altogether. So, stay safe, wear your masks, and answer any COVID-19 workplace testing questions you get at a safe social distance! Or, if you want, send those questions to us!
