We kicked off 2022 with two big developments for employers across the U.S. regarding COVID-19 compliance— vaccine-or-test mandates and at-home testing coverage. Here’s everything employers should know about these major developments.
Read on for practical compliance tools, samples, checklists and communication tips.
Vaccine-or-Test Mandates: For Now, a Patchwork System
On January 13, 2022, the Supreme Court blocked the Occupational Safety and Health Agency (OSHA) nationwide large private employer vaccine mandate, sending it back to a lower court. OSHA issued a withdrawal of the emergency temporary standard (ETS) effective January 26, 2022, writing in a statement that “Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”
The Supreme Court and OSHA actions mean that employers could voluntarily implement the OSHA policy or other vaccination policies with necessary religious and medical exemptions. However, such policies still need to comply with state laws. Resources to help employers stay up to date with multi-state compliance include a chart shared by Littler Mendelson that shows the status of the four federally mandated vaccine rules.
As of January 27, 2022, only one of those rules—for health care workers at facilities that participate in the Medicare and Medicaid programs—can be enforced. In addition to the withdrawn private employer mandate, the federal worker and federal contractor mandates were blocked. The chart details state-level vaccine mandates.
The post also includes a list of 11 states that limit or ban private employer vaccine mandates. Fisher Phillips created a map for private employers that covers the spectrum from prohibiting to requiring vaccination mandates and the various restrictions in between.
Moving on to the next big issue for employers: coverage for at-home tests.
Group Health Plans Cover At-Home COVID-19 Tests
Update: On February 4, 2022, the Departments issued an additional set of FAQs (Part 52) to clarify that “direct coverage” requires an in-person method of receiving the tests and a direct-to-consumer shipping option. DOL suggested that plans notify individuals not to seek reimbursement or use a debit card from a health flexible spending account (FSA) or similar account-based plans for the cost of tests paid or reimbursed by the plan. The other Q&As are about test supply shortages, suspected fraud and tests that require lab processing.
On January 10, 2022, the Departments of Labor (DOL) and Health and Human Services (HHS) issued guidance in FAQs (Part 51), stating that plans and insurers are required to cover Federal Drug Administration (FDA) authorized over-the-counter (OTC), at-home COVID-19 antigen tests [which I will refer to as “tests” in this blog for simplicity] purchased on or after January 15, 2022. Health plans must:
- Cover tests without an order or individualized clinical assessment by a health care provider
- Cover eight individual tests per enrollee per month.
Note: Plans are not required to cover testing for employment purposes.
The tests will either be free directly at the point of sale or by reimbursement if enrollees are charged for tests.
With five days to implement the coverage, but limited test availability, some benefit plan professionals, third party administrators, pharmacies and pharmacy benefit managers (PBMs) are still figuring out which method will work best and ramping up logistics. Steps must be taken to communicate with plan members about what this means for them. DOL guidance listed key information for plans to share with participants to ensure access to testing and plan-provided consumer education. More communication tips are included below.
DOL Incentivizes “Direct Coverage”
The DOL said that health plans are strongly encouraged to provide the direct coverage safe harbor for tests, which directly reimburses sellers without requiring participants to provide up-front payment. These potential sellers include preferred pharmacies, retailers, and online and mail-order programs.
The purpose of the safe harbor is to facilitate consumer access and provide a seamless experience for obtaining free tests. There is concern for people who can’t afford to pay for tests up front. Accordingly, plans should ensure that participants are aware of key information, including dates of availability of the direct coverage program and participating retailers.
If safe harbor conditions are met, then DOL will not take enforcement action against any plan or insurer that provides coverage of tests purchased by participants, beneficiaries and enrollees during the public health emergency by arranging for direct coverage of FDA-authorized tests through both its pharmacy network and a direct-to-consumer shipping program, and otherwise limits reimbursement for tests from nonpreferred pharmacies or other retailers the actual price, or $12 per test (whichever is lower). See Q&A 2 for more details.
Many PBMs have added this benefit to their formulary and track eight tests per participant per month. To better accommodate members in acquiring tests, some PBMs have opened their national pharmacy network to all members.
Higher Costs for Plans Without Direct Coverage
If the plan does not set up a process through which individuals can obtain tests with no up-front costs, then the plan and insurer must reimburse in the full cost of the test—even if the test costs more than $12—which would increase plan costs. For example, if an individual buys a two-pack for $34, and the plan has not set up a system to cover costs up front, then the plan would have to reimburse the $34 instead of $24.
Other Resources for Plan Sponsors
Here are practical considerations for plans that are working on compliance with the required testing coverage.
- Most important items to consider immediately from Sean Silva and Michael Halford at Milliman
- Six action items from Allison B. Bans at Snell & Wilmer
Communicating With Participants
First, employers should remind employees that they can get four free tests through https://www.covidtests.gov/. These tests are available at no cost to the health plan or the employees.
Second, participants need to know what method the plan is using and how their claim or reimbursement process works. Question five in the DOL FAQs Part 51 details how plans may provide education and information resources. Included below are links for educational web pages from government agencies.
1. Guidance to support consumers’ efforts to access and effectively use at-home tests, including information to explain the differences between at-home tests and tests performed or ordered by a health care provider and/or processed in a laboratory (including when different types of COVID-19 tests are appropriate based on guidance from scientific entities):
2. Quality information such as shelf life and expiration dates for specific testing products as well as information about reliability of test results, such as information from the test’s labeling or emergency use authorization (EUA) summary about the expected test performance (i.e., rate of false positives and false negatives) of specific tests and active recalls of FDA-authorized, cleared, or approved OTC COVID-19 tests:
(Here you will find authorization documents for each test including “Fact Sheet for Individuals” and “Instructions for Use (IFR).”)
(Look for devices named SARS-Cov-2 and COVID-19.)
3. How to obtain tests under different scenarios
Directly from the plan or insurer or from designated sellers: Find sellers that offer tests at a lower cost or that receive reimbursement directly from the plan, which will result in no charges for the participant at the time of purchase.
From other retailers outside of that network: Explain the reimbursement limit when a plan provides a direct coverage option. The plan is required to reimburse at a rate of up to $12 per individual test (or the cost of the test, if less than $12). If the test is more than $12, then the participant pays the remainder out of pocket.
If the plan has not set up a network of preferred stores, pharmacies and online retailers: Participants will be charged up front, submit claim forms and receipts, and will be reimbursed the full cost of the test.
4. How to submit a claim for reimbursement
Submit the required information needed and a description of the documentation in order for the plan or issuer to process the claim promptly and accurately. Include a reminder to keep your receipt (and a copy of your receipt).
Explain the electronic and paper filing options. For example, PBMs may have an online claim form or require participants to download the form off their website. Some PBMs require participants to log in for electronic filing. Encourage those who don’t yet have an online account to register now. Deskless workers might need paper forms delivered to them. Below are sample claims forms.
- Navitus posted a form that can be submitted via mail, fax or email along with receipts.
- OptumRx has posted an online claim form and a mail-in PDF version.
Lastly, DOL provided a consumer-friendly FAQ sheet that your plan could customize with its processes, what your participants need to know and who to contact with questions. The International Foundation will continue to track developments on these rapidly changing issues. To learn more, check out the International Foundation’s COVID-19 Resources page.
“Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.”