Medical Coverage

Is COVID-19 testing covered by my policy?

• Congress has passed legislation mandating all group health plans cover COVID-19 testing.

Are we required to offer COVID-19 testing with no cost sharing for employees and their dependents?

• Many states—including California, Colorado, New York, Oregon and Washington—are mandating insurance companies cover medically necessary testing without cost sharing. Most insurance carriers (including Aetna, Blue plans, Cigna, UHC, and numerous others) have announced that COVID-19 testing will be provided at no cost to members.
• Additionally, Congress has passed legislation that requires all plans cover testing without cost sharing as of the day the law is enacted. Grandfathered plans, self-funded plans, and governmental plans therefore have to provide testing without cost sharing.

If we cover without cost sharing, how will that affect HSA eligibility?

• According to IRS Notice 2020-15, high deductible health plans may cover COVID-19 testing and all subsequent treatment with low or no cost sharing without compromising the ability to contribute to a health savings account (HSA).

How will my employees’ coverage be affected while they are not working?

• In light of the widespread effects of the COVID-19 pandemic, we anticipate that many carriers will allow for certain extensions to coverage beyond what would typically be permitted under employers’ plan documents. If you wish to continue coverage for employees during quarantines, remote work arrangements, furloughs, or other reductions in employee hours, we encourage you to contact your Wells Insurance Benefits consulting team for coverage information and advice.
• Absent any exception or extension in your coverage, the following general rules would apply:
  • Terminated employees must be offered COBRA continuation coverage.
  • Employees covered by FMLA should have benefits protected for up to 12 weeks.
  • The new legislation passed by Congress provides expanded FMLA protection for employers with fewer than 500 employees. Individuals employed at least 30 days must be given 12 weeks of extended FMLA to care for children under 18 whose school or child care provider is unavailable due to public health emergency.  The first 10 days of this special leave are unpaid, but employees may choose whether to utilize paid leave available to them from the employer.  The remaining portion of the 12 weeks of extended FMLA are to be paid at two-thirds normal compensation, up to $200 per day and up to $10,000 in the aggregate.  For variable hour employees, an average of the last 6 months of hours, including all types of leaves, is to be used.  Employers must make reasonable efforts to restore the employee to the same or equivalent position (there is a hardship clause to exempt certain employers with fewer than 25 employees from this provision).
  • Employees in a full-time stability period under the look-back method may remain covered under the major medical plan regardless of hours until exhaustion of their full-time stability period.
  • Otherwise, employers should follow their written leave of absence provisions described in their wrap plan document. Benefits typically end at the end of the month in which the employee is no longer scheduled to work full-time, but some employers have language allowing coverage for employer-approved leaves of absence for another month or two, after which COBRA ensues due to reduction of hours.

Can we continue to cover employees if their hours are reduced during the COVID-19 outbreak?

• Employers should follow the written terms of their plans unless they obtain special permission from their insurer or stop loss insurer to extend coverage outside of normal eligibility terms. If moving employees to COBRA, the employer might offer to provide the usual employer contribution (or perhaps even offer to pay full COBRA costs) for the first two or three months of COBRA to help with this transition, with the hope employees might return to full-time work by that time.
• As discussed above, we expect that many carriers will be willing to agree to reasonable adjustments to plan terms during these circumstances. Please contact your benefits team to discuss further.

What happens to employees who are unable to pay their premiums while they are not working full-time hours?

• As discussed above, we expect that many carriers will be willing to agree to reasonable adjustments to plan terms during these circumstances. Please contact your benefits team to discuss further.
• Also, Congress has passed legislation providing certain employees extended paid FMLA to care for children when school or child care is unavailable, as well as providing certain employees two weeks of emergency paid leave due to COVID-19.
• Assuming employees unable to work full-time hours remain eligible and enrolled, employees unable to pay their premiums should be given a 30-day grace period notice to make up the premium shortfall. Should the employee be unable to make up the missing premium by the end of the 30-day grace period, the employer needs to decide whether to forgive the shortfall (and the employer pays that premium instead) or to terminate the employee’s coverage without access to COBRA.
• If the employer pays premium shortfalls for employees during this time, they should likely do so for any employee experiencing a premium shortfall during this time in order to avoid discrimination problems.

What is the recommended coverage for COVID-19 testing and treatment for self-funded plans?

• Medically necessary testing must be covered without cost sharing.
• Any treatment for COVID-19 subsequent to testing should be covered at normal benefit levels. If you wish to change your plan’s level of coverage for these services, please contact your Wells Insurance Benefits consulting team to discuss what steps need to be taken.

If I choose to cover COVID-19 treatment through my self-funded plan, will my stop loss policy cover those claims?

• Wells Insurance is in the process of gathering coverage details from several stop loss insurers we routinely work with. Generally speaking, we have found that most stop loss carriers are covering both testing and treatment for COVID-19. Please contact your Wells Insurance Benefits consulting team to confirm details specific to your plan.

Can I allow employees to change their benefits elections as a result of changes in circumstances due to COVID-19?

• The IRS only allows benefit election changes mid-year for recognized qualifying events (QEs). Employers should be careful not to deviate from the IRS’s list of QEs. Please contact your Wells Insurance Benefits consulting team if you have questions about employees’ eligibility to change benefits elections.

Disability and Other Coverage

Do employees qualify for short term disability benefits if they become ill due to COVID-19?

• Disability policies typically include a 7- or 14-day elimination period before disability benefits would be payable. It is expected most employees ill with COVID-19 will have recovered before the end of the elimination period, so benefits would not apply when the employee recovers quickly.
• In the event an employee is ill through that entire elimination period, then the policy’s definition of disability determines whether benefits are payable. Claims for COVID-19 illness will be evaluated the same as any other illness that makes employees unable to perform material duties of their job.
• Wells Insurance is in the process of gathering coverage details from several disability insurers we routinely work with. Please contact your Wells Insurance Benefits consulting team to confirm details specific to your plan.

Are employees considered to be actively employed while quarantined?

• Most disability policies recognize employer-approved short leaves of absence as still actively at work. Check with your Wells Insurance Benefits consulting team for your policy’s details.
• The federal bill HR 6201 passed by Congress provides two weeks emergency paid leave and 12 weeks of mostly paid FMLA for employers with fewer than 500 employees, which will help emphasize the position that these employees are actively at work.

Are employees with symptoms of COVID-19 covered by our critical illness, specified disease, or hospital indemnity policy?

• Please contact your Wells Insurance Benefits consulting team to confirm details specific to your plan.

Are employees with symptoms of COVID-19 covered by our long-term care policy?

• Long term care insurance (LTCi) would typically cover extended inability to perform two or more activities of daily living (ADLs) without assistance, such as bathing, eating, or transferring. Should the individual experience two losses of ADLs for the entire duration of their LTCi elimination period, then the LTCi policy would likely offer coverage at that point. Please contact your Wells Insurance Benefits consulting team to confirm details specific to your plan.

Leave Issues/ADA

Are employees entitled to FMLA leave during quarantines?

• A serious medical condition as defined by FMLA generally requires hospitalization or ongoing care of a physician. Should either of these be present for a specific quarantine situation, FMLA might apply. Also, if a doctor recommends someone get tested, then taking time off for that medically necessary test and to be quarantined while waiting for the results will qualify for FMLA.
• The new legislation passed by Congress provides expanded FMLA protection for employers with fewer than 500 employees. Individuals employed at least 30 days must be given 12 weeks of extended FMLA to care for children under 18 whose school or child care provider is unavailable due to public health emergency. The first 10 days of this special leave are unpaid, but employees may choose whether to utilize paid leave available to them from the employer.  The remaining portion of the 12 weeks of extended FMLA are to be paid at two-thirds normal compensation, up to $200 per day and up to $10,000 in the aggregate.  For variable hour employees, an average of the last 6 months of hours, including all types of leaves, is to be used.  Employers must make reasonable efforts to restore the employee to the same or equivalent position (there is a hardship clause to exempt certain employers with fewer than 25 employees from this provision).

Am I required to pay employees during quarantines?

• Congress has passed legislation mandating employers with fewer than 500 employees provide certain levels of compensation for two weeks of COVID-19 related quarantines.
• Some state or local paid leave laws might require pay during a quarantine. An employer’s own leave policies may also provide for compensation during these instances. If employees are not otherwise entitled to pay, they should typically be allowed to use any accrued sick time or PTO while away from work.
• In many instances, employees who are not sick will be capable of working from home during quarantines, and employers should review their remote work policies and procedures to minimize any business interruption during these periods. Employees working from home should be paid at their regular rates of pay.

Are employees that test positive for COVID-19 covered by the ADA?

• Generally speaking, a COVID-19 diagnosis will not constitute a disability under the Americans with Disabilities Act (ADA) as it is typically a temporary condition. In the unlikely case that an employee’s illness rises to the level of a covered disability, the ADA would require employers to evaluate whether reasonable accommodations could be made to enable someone to work without undue burden to the employer and without jeopardizing the health/safety of other employees.

Can we charge employees’ vacation and sick leave balances while not working?

• Employers should follow their written policies on taking leave. New COVID-19 specific legislation says for employers with fewer than 500 employees, “an employee may elect to” utilize paid leave benefits during the first 10 days of unpaid expanded FMLA to care for children during school/child care closures.  It is unclear whether this requires employers to give the employee a choice and prohibits the employer from charging accrued paid leave balances, so we’ll look for more guidance.

What happens to employees’ benefits during quarantines or other leave?

• Employers will want to follow the written terms in their plan documents. While short 14-day quarantines might not impact benefits and FMLA leaves protect benefits, other leaves might not protect benefits beyond a certain amount of time. Please see above for more details, and as always, please reach out to your Wells Insurance Benefits consulting team with any questions regarding your specific plan terms.

Privacy/HIPAA Issues

If an employee tests positive for COVID-19, can I inform their co-workers that they may have been exposed?

• Employers absolutely should inform supervisors and co-workers of confirmed COVID-19 diagnoses without divulging identities as much as possible. Typically employers are not going to learn of such a diagnosis from the health plan, so HIPAA privacy would rarely be implicated, but general privacy considerations should always be top of mind. Your Wells Insurance Benefits consulting team will be happy to assist if you have any questions or concerns about sharing this information.

Can I ask employees questions about their health to determine whether they need to be quarantined?

• Employers should not outright ask if employees have a specific condition, but they are permitted to ask employees about recent travel and about symptoms they are experiencing that might necessitate the need to be quarantined. Employers are authorized to insist employees stay home if conditions warrant but should not discriminate and should prevent stigma/discrimination in the workplace.

Workplace Safety

What obligations do I have to protect employees from exposure to COVID-19?

• Employers have a general duty under the Occupational Safety and Health Act (OSHA) to protect employees from known dangers at the workplace. As a result, it is imperative extra precautions are taken to protect the workplace from known or suspected exposures to the virus and to take extra cleaning measures. The Occupational Safety and Health Administration has published a document called Guidance on Preparing Workplaces for COVID-19 that provides recommendations for employers to protect employees and comply with their OSHA obligations.

What should I do if an employee gets sick?

• Employers should not allow an employee with a confirmed diagnosis or known exposure to someone with a confirmed diagnosis to access the workplace during a quarantine period. Public health officials have provided guidelines for how long quarantines should last based on when symptoms subside.

Can I send home an employee that appears to be sick?

• This is generally at the discretion of the employer, keeping in mind OSHA’s general duty clause to protect other workers. It’s typically best to ask the employee what symptoms they’re experiencing and whether they’ve sought medical consultation.

Can I force employees to get tested for COVID-19?

• This may be excessive, as public health officials don’t have an unlimited number of tests and prefer to only provide testing to those most at risk. Imposing a quarantine would be a more appropriate action in most scenarios.

Can I require employees to stay home if they have been exposed to others that have tested positive for COVID-19?

• Yes, employers will want to ensure all workers are protected from known potential threats to health and safety.

What if an employee is simply quarantined for potential exposure (but shows no symptoms)?

• If the employer can accommodate the employee working from home, then hopefully the quarantine will have little effect on the employee’s status or benefits. If the employer cannot accommodate the employee working from home, then the employer should follow its leave of absence policies and, if not already providing paid leave, perhaps consider a short-term emergency paid leave provision for impacted employees.

Reduced Hours, Furloughs, Temporary Layoffs, and Permanent Reductions in Force