Update Applicable to:

All Employers

What happened?

The Public Health Emergency and National Emergency Declaration have expired. However, employers may still have action items.

What are the details?

Background

Firstly, it is important to mention the public health emergency. The public health emergency (or PHE) was initially declared by the Secretary of the Department of Health and Human Services (HHS) Alex M. Azar II, on January 31, 2020, pursuant to Section 319 of the Public Health Service Act, Link 2. A PHE lasts for 90 days and must be renewed to continue; the PHE for COVID-19 has been renewed 13 times as seen in the most recent renewal by Secretary Xavier Becerra in February 2023, and that renewal expired on May 11, 2023. In regard to the PHE expiration, the Administration stated in its PHE transition roadmap, which I encourage employers to review, that the administration is committed to ensuring that there will be continued access to emergency use authorizations (EUAs) COVID-19 tests, vaccines, and treatments through the Food and Drug Administration (FDA), and telehealth flexibilities for those participating in Medicare or Medicaid. So that is what is not changing as a result of the end of the public health emergency.

With that said, the national emergency declaration was issued by former President Donald Trump in March of 13, 2020, pursuant to Section 201 of the National Emergencies Act, and this declaration increased federal support to Department of Health and Human Services (HHS) in its role as the lead federal agency for the federal government’s response to COVID-19 (Link).  Specifically within his proclamation, president Donald Trump authorized (Link) the Secretary of HHS (Alex M. Azar II) who declared the PHE, to exercise the authority under section 1135 of the Social Security Act to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance (CHI) programs, the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, private health insurance, as well as to allow for the authorization of medical countermeasures, which are FDA-regulated products that may be used in the event of a potential public health emergency; such as the vaccines, diagnostic tests, and personal protective equipment-gloves, masks, respirators). The Secretary of the HHS was able to use his authority to allow the Centers for Medicare and Medicaid Services (or CMS), to activate nationwide waivers of requirements and conditions, easing certain requirements for impacted providers, throughout the duration of the pandemic. (Link); (CMS FAQs). These waivers can loosen restrictions on the use of telehealth and certain requirements for hospitals and healthcare providers to improve their response efforts.

• The National Emergency Declarations remains in effect unless terminated by the President, or if the President does not issue a continuation notice annually. On February 24, 2021, president Bident issued a continuation of the emergency beyond March 1, 2021, and he issued another continuation again on February 18, 2022 to continue beyond March 1, 2022. Then the Biden administration announced on Jan. 30, 2023, that they would extend the national emergency. The president then issued that continuation notice on February 10, 2023 in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), which was the final continuation set to expire on May 11, 2023.

• In addition, Congress also enacted legislation—including the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act , the American Rescue Plan Act (ARPA), the Inflation Reduction Act (IRA), and the Consolidated Appropriations Act, 2023 (CAA)—that provided additional flexibilities tied to one or more of these emergency declarations

Non-compliance would result if employers do not make the appropriate benefit changes and communicate those changes to their employees. As a side note, I want to mention that the Equal Employment Opportunity Commission (the EEOC) issued a number of updates to its technical assistance document that includes some new FAQs surrounding the end of the national emergency. The end of the COVID-19 public health emergency does not mean employers can automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances, such as on-the-job accommodations for employees with Long Covid, or a leave of absence. However, employers may evaluate accommodations granted during the public health emergency, and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances. EEOC Announcement: Link; EEOC Guidance: Link; Jackson Lewis Law Firm Breakdown: Link; Link 2

First and most important is the release of the FAQ guidance issued March 29, 2023, by the U.S Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury. The FAQ guidance includes details on COVID-19 diagnostic testing, coverage of vaccines, and the extended deadlines for COBRA, special enrollments, and group health plan claims and appeals. There are numerous changes in regard to health care and the FAQ guidance is the primary resource that employers should review.

It is important to note that although most states have removed their COVID-19 emergency declarations, employers should still ensure they are compliant with all state and local regulations, including legislation on paid sick leave related to COVID-19, which Oakland, CA, Colorado (expires June 8, 2023), Philadelphia, PA (expires December 31, 2023), and New York still have active Covid-19 paid sick leave laws. Other paid sick leave laws not specific to Covid-19, still allow for leave related to vaccination side effects, for example. On another note, Florida has passed a law which prohibits employers from requiring an employee from wearing a mask or any other face covering, base any employment decision on COVID-19 vaccine documentation and status, requiring covid testing and failure to take a Covid test. Additionally, California’s CAL/OSHA, which has jurisdiction over private worksites in California, recently approved a COVID-19 Non-Emergency Standard, which will continue to apply regardless of whether a public health emergency is in place at the federal level. (Links for employers: Covid-19 Legislative Action and Agency Updates, Covid-19 Laws and Legal Resources, State COVID-19 Legislation, State Health Emergency Orders).

Possible Action Items

• Plan sponsors should consider how coverage for COVID-19 testing and vaccines will continue under its group health plan and communicate any changes to participants. What health benefits are changing? When? Can they still receive free COVID-19 tests? If not, what will the new benefits be? What are the new deadlines by which participants and their families need to make key health decisions? For example, plans will no longer be required to cover some services related to COVID-19 (such as diagnostic testing, including over-the-counter tests) at no cost to the participant, but can still choose to do so. Additionally, some of the flexibility that was provided to extend the timeframes for participants for certain health plan-related deadlines, such as special enrollment, COBRA election and payment, and claims and appeals deadlines, may soon lapse. Source: Link; deadlines

• Plan sponsors that amended legal plan documents and/or summary plan descriptions to incorporate the foregoing requirements will need to amend plan documents and/or issue Summary of Material Modification (or SMMs) along with any participant communication materials (or have the participant communication materials also serve as an SMM).

• Any change that impact the summary benefits of coverage will require 60-day advance notification.

• Review all plan documents, and if they previously had been amended to reflect tolling of the normal HIPAA, COBRA and ERISA-related timetables due to the COVID-19 National Emergency, then amend the plan documents to remove those timetables once the COVID-19 National Emergency Period ends.

• Review all summary plan descriptions (SPDs), enrollment materials, COBRA notices, and other relevant materials, and if necessary, remove any existing references to the tolling of deadlines during the COVID-19 National Emergency.

• Notify plan participants about how they could be affected by the end of the COVID-19 National Emergency and the resulting resumption of normal HIPAA, COBRA and ERISA-related deadlines.

What do employers need to do?

Most importantly from an HR compliance standpoint, employers need to evaluate any COVID-19 policies, including benefits, vaccine and testing requirements, and safety measures, to determine whether any changes are appropriate in light of the end of the emergency declarations. Employers should consult with their employment attorney before implementing any changes or ending any safety requirements to ensure compliance with relevant federal, state, and local laws. Once the necessary changes have been made, publish those updated policies whether within the employee handbook as an addendum, or separately, and this is to ensure all employees are notified and aware of the changes.

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