As the COVID-19 pandemic took its toll, the year 2020 ushered in declarations of a National Emergency (“NE”) and a Public Health Emergency (“PHE”). The PHE is set to expire on May 11, 2023. In addition, H.J. Res. 7 was signed by President Biden on April 10, which ends the NE on May 11, 2023 as well. These changes will impact employers in a few different ways. Employers should know what the expiration of the PHE and NE means for health plans, mandatory coverage of COVID-19 testing, the completion of I-9 forms and other matters.
Ending of the NE
General Changes for Employers and Employer-Sponsored Group Health Plans
During the NE, the U.S. Department of Labor (“DOL”), the Department of Health and Human Services (“HHS”) and the Department of Treasury (collectively, “the Agencies”) issued guidance, including Disaster Relief Notice 2021-01, to provide relief for employee benefit plans, plan participants and beneficiaries. With the end of the NE, the relief granted will revert to original requirements starting 60 days after the end of NE, as described by the Agencies in recently issued FAQs. Specifically, the Agencies:
- Will no longer allow an extended time for plan sponsors to provide plan documentation and other notices to participants.
- Will no longer require an extended time for participants to file a benefit claim and an appeal.
- Will no longer require/allow the extension of specific deadlines in connection with health and welfare plans, including:
- Time for plan sponsors to provide COBRA notices to plan participants;
- Time for participants to elect COBRA and pay COBRA premiums; and
- Time for participants to request a HIPAA special enrollment.
Employers should be aware of the changes coming and evaluate whether any changes to their plans are warranted to align plan administration and compliance with the pre-NE regime. Importantly, when the NE ends, the HHS projects that an estimated 15 million individuals will lose Medicaid or CHIP coverage and will be entitled to a special enrollment period to enroll in an employer-sponsored group health plan. In a recent press release, the DOL is encouraging employers to continue allowing extended enrollment timeframes to help employees obtain health coverage, indicating that federal law does not prevent a group health plan from extending the special enrollment period further than the statutorily required 60 days.
Form I-9 Compliance
During the NE, employers with employees taking physical proximity precautions due to COVID-19 were not required to review the employee’s identity and employment authorization documents in the employee’s physical presence as usually required when completing the Form I-9.
This provision only applied to employers and workplaces that were operating remotely. If there were employees physically present at a work location, no exceptions were being made for in-person verification of identity and employment eligibility documentation for Form I-9.
At this time, the expiration date remains July 31, 2023, for the temporary guidance that permitted businesses operating remotely due to COVID-19 precautions to conduct remote Form I-9 document inspections even though the Biden administration announced that the NE and PHE will expire on May 11, 2023.
Ending of the PHE
COVID-19 Vaccination and Testing Coverage
In connection with the declaration of the PHE, several pieces of federal legislation enacted during the pandemic imposed requirements on health insurance insurers and employer-sponsored group health plans, including requirements to:
- Cover all COVID-19 testing and related services without cost-sharing or medical management requirements; and
- Coverage of COVID-19 vaccines from in-network providers at no cost to the participant as a preventative service under the ACA standards.
With the expiration of the PHE, these requirements will also end. Guidance from the DOL reminds group health plans and health insurance issuers are required to notify in advance their participants, beneficiaries, and/or enrollees of reductions in benefits, which could include changes in coverage of COVID-19 diagnosis and treatment, including testing. In addition, employers will need to evaluate whether corresponding amendments need to be made to their group health plan(s).
State-Specific Laws
The expiration of the PHE also will bring changes to certain state-specific employment laws. Two examples are outlined here.
Colorado
In 2020, Colorado passed the Healthy Families and Workplaces Act (“HFWA”) which requires employers to provide paid sick leave to all of their employees. The HFWA also requires employers to provide up to 80 hours of paid supplemental sick leave when a PHE is declared by either the state or federal government. Colorado previously ended its PHE, but due to the expiration of the federal PHE, the obligation to provide additional 80 hours of supplemental paid sick leave will end on June 8, 2023.
Washington
The State of Washington passed the Health Emergency Labor Standards Act (“HELSA”) which amended the state’s workers compensation and industrial health statutes. These amendments require employers to notify workers of COVID-19 exposures; require them to allow employees to wear masks or other face coverings which do not create a safety or security issue; and prohibit discrimination against employees who seek accommodations for COVID-19. With the expiration of the PHE, these additional employer requirements will end. However, due to the enactment of HELSA, these added provisions will be in place in the event of a future PHE.
If you have any questions or would like more information on these topics, please contact:
- Calvin Chambers at (317) 977-1459 or cchambers@hallrender.com;
- Lindsay Ramsey at (317) 429-3637 or lramsey@hallrender.com;
- Jon Rabin at (248) 457-7835 or jrabin@hallrender.com
- Your primary Hall Render contact.
Special thanks to Jennifer Davis, Summer Associate, for her assistance in preparing this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
