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Corona Virus Response Strategy for Businesses

Last Updated:

NOTICE: This site is not intended to provide legal or healthcare advice.  Information was documented on this site based on information available at the time; however, guidance from the CDC and legal community are changing rapidly, so please work to validate these notices on your own. These are general answers and each carrier and situation will dictate the adjudication of each specific claims scenario.

Fully Insured Medical Plan

For most medical carriers the COVID-19 diagnostic test, the office visit, and telehealth services are now available at no cost to members.  We recommend visiting your carriers dedicated COVID 19 resource page to see how your carrier is specifically handling this unprecedented event.

Cigna Coronavirus Resource Center

Humana Coronavirus Resource Center

UHC Coronavirus Resource Center

Kaiser Resource Center

Anthem Coronavirus Resource Center

The IRS released Notice 2020-15 to facilitate proactive COVID-19 testing for those individuals participating in a CDHP Health Savings Account plan.  This is important to note so that individuals enrolled in such plans DO NOT have to meet their annual deductible for the plan to cover such expenses as testing and vaccinations (assuming one is created for the virus) related to the virus.  This will hopefully encourage individuals who feel they may have symptoms of the virus to be treated early without the fear of incurring additional out-of-pocket costs.

UPDATE 03/21/20:

Effectively immediately, and for the duration of the national emergency, group health plans, as well as group and individual insurance contracts, will be required to provide coverage for COVID-19 testing and certain costs relating to the administration of the test – without application of any cost-sharing such as copayments, coinsurance, or deductibles.  This now applies to both self-insured and fully insured health programs.

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.

Please contact your TBC account team for confirmation as to how your self-insured plan will handle such claims.

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.

The department of insurance released this statement.  Multiple insurers have already followed this directive from the DOI and have already started to refrain from canceling policies due to non-payment.

GA DOI COVID_19 Directive-3202020-1057

Please check with your account executive team before making any decisions pertaining to your plan.

Self-Insured Medical Plan

Coronavirus will currently be covered like any other illness and follow your plan document for office visits and hospitalizations.  This is subject to change especially with government intervention as a possibility.

Employers under a self-insured health plan should check with their providers to determine how they are addressing cost-sharing related to COVID-19 screening. These employers should also determine what actions must be taken to elect in or out of the 2019 Novel Coronavirus testing cost-sharing programs.  Under a self-insured platform there is more flexibility with how such expenses will be handled.

Please contact your TBC account team for confirmation as to how your self-insured plan will handle such claims.

The IRS released Notice 2020-15 to facilitate proactive COVID-19 testing for those individuals participating in a CDHP Health Savings Account plan.  This is important to note so that individuals enrolled in such plans DO NOT have to meet their annual deductible for the plan to cover such expenses as testing and vaccinations (assuming one is created for the virus) related to the virus.  This will hopefully encourage individuals who feel they may have symptoms of the virus to be treated early without the fear of incurring additional out-of-pocket costs.

UPDATE 03/21/20:

Effectively immediately, and for the duration of the national emergency, group health plans, as well as group and individual insurance contracts, will be required to provide coverage for COVID-19 testing and certain costs relating to the administration of the test – without application of any cost-sharing such as copayments, coinsurance, or deductibles.  This now applies to both self-insured and fully insured health programs.

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage. Please contact your Account Executive for help working through these specific issues.

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.

The Society of Actuaries created the attached brief outlining the impact of COVID-19.

Disability

Generally, carriers do not consider quarantined workers to be disabled unless they have a medical condition that results in restrictions and limitations that satisfy a policy’s definition of disability.

Coronavirus would be treated no differently than any other covered illness under most STD and LTD plans.   If a person is diagnosed with coronavirus, a claim for STD or LTD benefits could be payable after the elimination period if the definition of disability has been met, i.e. if they are unable to work because of the coronavirus infection.  If, after diagnosis, they remain able to perform work duties (even if quarantined and working from home) the employee would generally not be considered Partially or Totally Disabled.  Additionally, individuals who are self-quarantined without a diagnosis and not sick would not have a payable claim situation.

Under federal and state statutory leave laws, an FML administrator can generally approve a claim when a claimant meets the definition of Serious Health Condition under the applicable federal/state statute. Under these statutory programs, there is an expectation that benefits will be administered on a consistent basis no matter the underlying illness. As with disability claims, each leave is decided on its own specific facts. In general, however, employees are not entitled to federal or state leave to stay home during a quarantine period if they are not ill. It is important to monitor legislation adopted after February 2020 for up to date information.

A Long-Term Care claim filed by individual diagnosed with coronavirus would likely be payable if they meet the policy definition and they are receiving covered services.  If a claimant is quarantined and not receiving covered services, no benefits would likely be payable. 

At TBC, we know there are several questions that come up regarding disability and the Department of Labor Americans with Disabilities Act (ADA).  We have seen questions come up regarding personal travel (Spring Break) and how it may or may not impact disability related issues specific to the virus.  For legal guidance, we recommend that you reach out to your counsel to appropriately establish guidelines and communication.  To aid in those conversations with your legal team, you may find the following comments from the Law and Workplace attorneys at Proskauer Law firm a helpful tool.

According to Proskauer law firm, “while employers may implement restrictions on work-related travel to affected areas, employers should tread more carefully when attempting to police personal, non-work-related travel. “

“… it is worth noting that the EEOC has argued on at least one occasion that an employer acting on a potential future health condition may be viewed as “regarding” an employee as disabled as long as the condition otherwise qualifies as a disability under the law.  For this reason, employers should consider the risks (as well as the practicalities) relating to imposing a ban on personal, non-work-related travel to affected areas.  However, as discussed further below, employers may require employees engaging in travel to these areas to remain out of the workplace for at least 14 days upon their return.”

“the ADA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.”

https://www.lawandtheworkplace.com/2020/01/coronavirus-and-the-workplace-what-employers-need-to-know/

Family Medical Leave Act (FMLA)

Not necessarily. If COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave. An example of a situation in which the leave may not be FMLA-qualifying is when an employee is required by the employer to stay home but is asymptomatic.  Employers should evaluate any applicable state mini-FMLAs to ensure they do not contain different or additional requirements or provisions.

The regulatory definition sections that most likely apply in the COVID-19 context (assuming a mild case) are the following:

  • More than three calendar (not work) days of incapacity plus two treatments by a healthcare provider (the first of which must occur within seven days of the first day of incapacity and the second within 30 days of the first day of incapacity)
  • More than three calendar (not work) days of incapacity plus one treatment by a healthcare provider (which must occur within seven days of the first incapacity) plus continuing treatment (including prescription medication) under the supervision of a healthcare provider

Because some individuals will not seek health care treatment unless they need urgent medical attention or they are at a higher risk for complications from COVID-19, some cases of COVID-19 will not qualify as a serious health condition simply because the employees will not have visited a doctor/healthcare provider for any treatment.

Families First Coronavirus Response Act (FFCRA)

In response to the spread of the 2019 Novel Coronavirus (COVID-19), President Trump signed the Family First Coronavirus Response Act (Act) on March 18, 2020 and it is set to go into effect on April 1, 2020. The Act is an economic stimulus plan that affects coverage and cost sharing for COVID-19 testing and provides expanded federal family and medical leave and a new federal paid sick leave law. The Act also addresses other issues such as coverage and cost sharing for COVID-19 testing under Medicare and Medicaid, emergency grants to states for unemployment insurance, tax credits for paid sick and paid family and medical leave, and federal funding for various programs.

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Coronavirus Aid, Relief and Economic Security Act (CARES)

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (CARES) Act. It delivers $2 trillion in financial stimulus to the economy including preferred loans to small businesses, capital for distressed industries, direct cash payments to many Americans, unemployment insurance enhancements, as well as various provisions affecting employee benefit plans. The article will focus on the key employee benefit provisions of the CARES Act.

The recently enacted Families First Coronavirus Response Act (FFCRA) requires group health plans and insurers to provide coverage of certain diagnostic COVID-19 testing and related services without cost sharing and without preauthorization.  The CARES Act expands on these provisions in the following ways:   

  • Requires that all testing for COVID-19 must be covered without cost sharing.  In addition to tests approved by the FDA, this includes tests for which: 
  • the developer has requested, or intends to request, an emergency use authorization from the FDA,  
  • tests developed in and authorized by a state that has notified the Secretary of Health and Human Services (HHS) of its intention to review tests intended to diagnose COVID-19or  
  • other tests that the HHS Secretary determines are appropriate; 
  • Requires a group health plan or insurer to reimburse providers for such testing at either (1) the negotiated rate with such provider agreed on prior to the COVID-19 pandemic or (2) if no such negotiated rate exists (i.e. out-of-network providers)at a rate not greater than the cash price, which must be posted publicly by the provider.  

If a COVID-19 vaccine, immunization, etc. is developed, the Act mandates coverage without employee cost sharing for such preventive services.  To qualify for this treatment, the preventive item or service must meet certain criteria as defined by the U.S. Preventive Services Task Force and/or the Advisory Committee on Immunization Practices.

The Act includes a safe harbor allowing a high deductible health plan (HDHP) to cover telehealth or other remote care services, with no cost-sharing, prior to the participant’s satisfaction of the plan deductible.  This ensures the participant will maintain Health Savings Account eligibility.  This safe harbor is only for plan years beginning on or before December 31, 2021.

Eliminating a prohibition from the Affordable Care Act, HSAs, FSAs, and HRAs can now be used to purchase over the counter medications without a prescription (previously allowed only if prescribed drugs or insulin).  Further the act mandates that menstrual care products will be treated as qualified medical expenses and can also be purchased using an HSA, FSA, or HRA. These provisions are effective for expenses incurred and amounts paid after December 31, 2019.

The CARES Act makes several minor changes and clarifications to the FFCRA  

  • Under the FFCRA, emergency paid FMLA leave is generally available to employees who have been employed for 30 days or more.  The CARES Act modifies this rule, stating that employees laid off on or after March 1, 2020 that are then rehired by the employer can be eligible for paid family leave.   The employee must have been employed for at least 30 of the prior 60 days.  This effectively means that a rehired employee could be eligible for this paid leave immediately upon rehire.   
  • Per the FFCRA, employers are eligible to receive reimbursement for paid sick leave and family leave through tax credits, thus creating cash-flow concerns.  To address this, The CARES Act created a process where employers can request an advance of anticipated tax credits. Further guidance on the specifics of this process are forthcoming from the IRS.  
  • The CARES Act provides funding to federal contractors for reimbursement of paid leave given to certain contract workers if they are unable to work or telework due to COVID-19. 
  • The CARES Act clarifies that the monetary caps for emergency paid sick leave and emergency FMLA leave under the FFCRA apply “for each employee”.  (i.e. $511 per day per employee, etc.)  

 

Pharmacy, Prescriptions and Refills

As of February 27th, only one drug shortage due to COVID-19 has been reported by the FDA. The agency did not identify the particular drug but stated that alternatives were available. The FDA has asked over 180 drug manufacturers to evaluate their entire supply chain. With increased attention to the potential for shortages, employers should be aware of the risk and consider strategies to ensure their members’ well-being. Members are also encouraged to discuss therapeutic alternatives with their physician should disruption to the supply chain occur.

Employers should evaluate the all the potential barriers in place that may restrict pharmacists and patients from filling prescriptions. Depending on the capability of their PBM, employers can implement these strategies: make edits to their plan’s “refill too soon” utilization percentage, permit emergency refills, allow maximum extended day supply at the time of the refill, and/or waive processing restrictions for out-of-network pharmacies.

This paper from Gateway Health Partners highlights some of the known vaccines, novel drugs and existing drugs in development to fight COVID-19.

COVID 19 – Treatments in Development

Work from Home

If your company does not currently have a Work From Home (WFH) policy it can be a daunting task to establish at “the last minute”.  We think the attached sample policies may be of help while you plan to implement such a policy.   One is more of a temporary implementation and the other one long-term.

Sample Telecommuting Policy

Sample Remote Work Policy

Employee Work from Home Guide

Telecommuting Policy Agreement

Employee Wellbeing

In addition to your accessing your personal health provider, and even mental health resources through some telemedicine the CDC put out the following link with helpful hints.

https://www.cdc.gov/coronavirus/2019-ncov/about/coping.html

GA COVID-19 Emotional Support Line and Resources

Alok Desphande of SmartPath Financial has provided a free recording of a webinar Coronavirus – What’s Your Next Financial Move? This is an excellent resource to share with employees. The webinar is approximately an hour long and addresses many of the common questions employees are asking about handling their finances in this turbulent season. The webinar addresses:

  • Common responses to financial upheaval
  • Practical ideas to weather a financial downturn
  • A realistic view of what is truly at risk
  • Guidance on how to manage a 401(k)

General Employer/Employee Questions

We have recieved mixed responses to this question.  We have been told $52 with LabCorp and $95 with Quest Diagnostics.  UHC/UMR gave us a range of $50-$250.  As we find more information we will post it here.
  • HOW – Call your doctor of local health department if you are symptomatic to discuss whether you should be evaluated in person and considered for testing.
  • Your health care provider will consult with the Georgia Department of Public health to determine if you need to be tested.
  • WHERE – To be prioritized for testing at the Georgia Public Health Laboratory, patients must meet the state’s criteria, which evaluates a combination of symptoms and risk factors.
  • WHERE – Patients who don’t meet priority requirements can consider testing at commercial labs.
  • WHERE – As of 3/16 several commercial testing sites such as LifeHope Labs have a consumer test kit for COVID19…however, these labs are asking that you first contact a physician to discuss your symptoms before placing an order.  Once you have been designated as a candidate to receive a test kit, your physician will provide you with a code that you can use to order and pay for the test kit (approx. $250).
  • For more information, visit the Georgia Department of Public’s Health’s website https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html
Originally, the test was taking 3 to 4 days to get returned, but that was due to low lab capacity. Most recent my, it is common to get the test results back in 24 to 48 hours.

According to the EEOC Guidance, whether the Coronavirus will rise to the level of a “direct threat” under the ADA will depend on it if reaches pandemic levels versus current epidemic levels and the severity of the illness/risk.  Employers who are considering temperature scans or other medical inquiries should consult with labor and employment counsel to ensure that the medical inquiry is permitted under the ADA.

You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.

New unemployment claim (and partial claim) rules were adopted by the Georgia Department of Labor on March 16, 2020, and they provided an update on March 17, 2020.  Here is a link to those changes:  https://dol.georgia.gov/blog/new-information-filing-unemployment-partial-claims-and-reemployment-services

According to attorney Davis, Wright and Tremaine, LLP – Any travel policies should be narrowly focused and apply only with regard to specific geographic areas identified by the CDC and WHO as high-risk. In addition, travel policies should be in writing and distributed to all employees, not just to employees who the employer believes is or may be considering travel to high-risk areas.  By so doing, the employer can avoid the appearance of discrimination and limit potential race, national origin, or other discrimination claims, while helping to protect the health and well-being of employees.

The ADA prohibits discrimination in the workplace against employees and applicants with disabilities and requires employers to provide reasonable accommodations when necessary.  The ADA also limits the type of medically related inquiries that an employer can ask of an applicant or employee, and imposes strict confidentiality requirements relating to any medical information that is obtained.  A medical inquiry or examination during employment is permissible only if it is job-related and consistent with business necessity.  If an employer has a reasonable belief based on objective evidence that an employee will pose a direct threat to other employees due to a medical condition, then medical inquiries concerning that condition will be job-related and consistent with business necessity.  According to the Equal Employment Opportunity Commission (EEOC), taking an employee’s temperature to determine if he or she has a fever is an example of a medical inquiry.

While we are not accountants and recommend you receive guidance from your tax advisors, we understand individual taxpayers can defer up to $1M in tax payments for 90 days beyond April 15th, and C-Corporation taxpayers can defer up to $10M in tax payments.  Many States are apparently following suit for state income tax. It is important to note the April 15th tax filing deadline had not been extended as of the writing of this Q&A.
We are seeing a significant uptick in cybercriminals attempting to to leverage the increased work from home environment and to exploit fears about the growing pandemic.
Examples include:
  • Request to handle invoices, ACH, and wire transition differently (suggestion: request a video conference to verify)
  • Fake Websites asking for Usernames and Passwords
  • Requests for donations to fraudulent charities
  • Spear Phishing, requesting the recipients to download documents or click on links that appear to come from health authorities, internal team members, technology providers, and financial institutions.
The short answer to this question is no. If an employee self-quarantines with only a subjective fear of contracting COVID-19 that is not pursuant to one of the qualifying reasons set forth in the EPSLA, then the employee does not qualify for EPSLA leave. We’re not necessarily counseling immediate adverse employment action in this situation, rather simply stating that employers don’t have to accept an employee’s apprehension or pay them to stay out of work.

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Phone: 678.904.9333
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E-Mail: tbccontact@benefitcompany.com

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