Life After COVID-19 Emergency Declarations: What Employers and Employees Need to Know

On April 10, 2023, President Joe Biden signed into law a House Bill that immediately ended the presidential declaration which previously deemed COVID-19 to be a national emergency.  While a separate order by the Secretary of Health and Human Services from January 2020 remains in effect, that declaration is set to expire on May 11, 2023.  With all this in mind, employers and employees must understand how this expiration will impact medical benefits, COVID-19 testing programs, vaccine mandates, and other safety measures.

The unwinding of the emergency declarations will most impact COVID-19 medical benefits.  For employees, the end of the public health emergency means that depending on where the employee lives, those who may have previously qualified for Medicaid, may no longer qualify.  Further, if the emergency declarations end in May as expected, healthcare plans will no longer be required to cover COVID-19 testing and vaccines without cost sharing, prior authorization, or other medical administrative requirements.  Further, workers who qualify for the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) may also be impacted.  COBRA allows workers to choose whether to continue group health benefits, provided through their group health plan, for a limited period of time under certain circumstances such as voluntary or involuntary job loss, reductions in the hours worked, transition between jobs, death, divorce, and other life events.  Any suspended time frames for electing and paying for COBRA coverage are set to end sixty days after the national emergency expires on May 11, 2023, which would be July 10, 2023.  Therefore, whether plan sponsors decide to extend the suspended timeframes beyond sixty days will determine the true extent of this.

The end of the emergency declarations means employers must reevaluate their COVID-19 testing programs.  While the emergency declarations were still in place, the Equal Employment Opportunity Commission (“EEOC”) stated that testing is always job-related and consistent with business necessity as long as it adheres to recommendations from the Centers for Disease Control, the Food and Drug Administration, or any other public health authorities.  However, the EEOC will likely amend this assessment with the emergency declarations ending soon.  Consequently, employers should consider various factors, such as the time window they give employees to take the required tests.  As mentioned, insurance companies are now allowed to implement new preauthorization requirements before covering specific COVID-19 tests.

Finally, employers should begin to reexamine whether they wish to continue mandating employees to get the COVID-19 vaccine or strongly encourage employees to remain current with their COVID-19 vaccines.   Particularly, suppose a company decides to end the vaccine mandate. In that case, employees who may have resigned or been terminated for remaining unvaccinated should consider whether they would like to be rehired at their previous jobs.  However, whether an employer deciding whether to rehire an unvaccinated employee should still consider all of the relevant factors, such as their policies on rehiring employees who were terminated, the industry that the employer is in, whether there are any available positions at that moment, etc.  Also, it is paramount that employers understand that while the emergency declarations are beginning to unwind, they still must ensure that they follow all state and local regulations as they relate to COVID-19.

If you are an employee and feel that you are not being rehired by a previous employer solely due to your vaccination status or that your employer is not following state or local regulations pertaining to COVID-19, contact Borrelli & Associates, P.L.L.C., to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 248-5550, (516) ABOGADO, or (212) 679-5000.