Employer Considerations as COVID Emergency Declarations come to an end

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The COVID-19 public health emergency, first declared in January 2020 and renewed every 90 days since, is scheduled to come to an end on May 11, 2023.  The national emergency, which was established in March 2020, came to an end on April 10, 2023.  

The have both symbolic and real-world consequences.

According to the Centers for Disease Control and Prevention (CDC), COVID-19 was the third leading cause of death between 2020 and 2023. Currently, key measures of COVID statistics are at or near unprecedented lows for the pandemic.

“At the three-year mark, COVID is no longer upending life to the extent it once did, with a large percent of the population having some protection against the virus from vaccinations and prior infections,” says Amy Vazquez, Vice President of Employers Association of New Jersey.

Employers may wish to evaluate any COVID-19 policies, including benefits, vaccine and testing requirements, safety measures, and other employment policies to determine whether any changes are appropriate in light of the end of the emergency declarations.

Healthcare plans will no longer be required to cover COVID-19 testing and vaccines without cost sharing (i.e., co-pays and deductibles) and prior authorizations.  Employers may see an increase in requests to join employer health benefit plans as some workers may no longer qualify for Medicaid.

Provisions that allowed for extended time for special enrollment in health plans, as well as COBRA-related relief, in which employees had extra time to decide whether they wanted coverage and pay their COBRA premiums will come to an end on July 10th (60 days following the end of the National Emergency).

The Department of Health and Human Services transition guidance provides information on other benefits which may be impacted.

In terms of workplace safety, OSHA’s guidance on mitigating and preventing the spread of COVID in the workplace was last updated in August 2021 and relies on CDC community risk levels guidance to help individuals and communities to decide which prevention actions to take based on the latest information.  The community levels in each of New Jersey’s 21 counties is currently “low.”

Some employers may opt to continue policies such as daily health screening and temperature checks, which are generally not burdensome.  Businesses still face disruption due to work absences or intermittent requests for remote work due to employee or family illness.

While the end of the declarations does not require employers to end their vaccine mandates, some may use this moment to consider whether to keep mandates in place or shift to a practice of strongly encouraging all employees to remain up to date with their COVID-19 vaccines.

Employers should also consider whether continuing to COVID test is job related and consistent with business necessity under the Americans with Disabilities Act (ADA).  The EEOC recommends an individualized assessment to determine whether mandatory testing is warranted going forward.

Mask are currently optional in most locations in New Jersey, including health care facilities, unless the individual businesses or facilities choose to require them.

What about employees who wish to continue to mask up at work?  The CDC continues to recommend masking according to community levels, as well as when you have been exposed or if you are at high risk for severe illness. According an FAQ on NJ’s COVID information hub for businesses, “Businesses are permitted to impose stricter mask policies and additional prevention strategies, but businesses are not allowed to restrict the use of face masks by their staff, customers, or visitors.”  This FAQ is dated April 2021.

“If an employee can express a reasonable basis for continuing to wear a mask, the employer may be hard pressed to deny it.  A worker with a disability, for example, could always request to wear a mask as an accommodation,” says Vazquez. “It remains to be seen whether we will see additional updated guidance as the pandemic comes to an end.”