Testing for COVID-19 is on the long list of actions employers are considering to keep employees safe as they return to their worksites. As part of relief legislation in March, Congress required insurers and self-insured health plans to cover COVID-19 testing and related items and services without cost-sharing for the duration of the public health emergency. Employers considering mandatory or opt-in testing as part of a safe workplace strategy are looking for ways to get the cost of testing covered, especially given vendor charges vary widely, from $100 to $300 or more per test. The regulators have now weighed in with new interpretations of the testing coverage mandate, and the guidance may change employer thinking on how testing is funded.
DOL, HHS, and Treasury guidance issued on June 23 clarified that the legislation requires insurance coverage of items and services only for diagnostic purposes when ordered by a health care provider, including testing of individuals with signs or symptoms compatible with COVID-19, as well as asymptomatic individuals with known or suspected recent exposure to the virus. However, testing conducted to screen for general workplace health and safety (such as employee “return to the workplace” programs), or for “surveillance,” need not be paid by insurers or self-insured health plans. Some members of Congress have disputed this interpretation as going against the clear intent of the legislation. But unless a new and more specific legislative mandate is enacted, employers are left to move forward with the regulators’ interpretation.
Testing costs are not yet a large burden for employers generally, and a recent Mercer survey found that only about 5% of respondents are conducting testing (or plan to) as part of their return strategy. More common are temperature checks and self-attestations, with a much lower price tag. But some employers have attempted to share the testing cost burden with employees, and, for obvious reasons, it has not been well-received. Antibody testing might be easier for large-scale administration. However, the EEOC made it clear in their own June guidance that antibody tests may not be required as an obligation for workplace entry.
What, then, is the best course of action for employers that want to implement testing of employees in the workplace? Testing certain employees on a mandatory basis may be tempting, but the EEOC has cautioned employers that would require targeted testing of employees because of potential discrimination issues. Thus, employers may be left to allow employees to opt in to testing in order to keep costs down, knowing the only practical path forward is for the employer to cover the cost.