Written by: Susan L. Swatski, Esq.
Health plans are not required under Federal law to cover COVID testing if the reason for the test is not an individualized treatment or diagnosis. For example, return-to-work screenings do not have to be paid by an employee’s health plan. If an employee is not covered by an insurance plan, then the employer should look to the Americans with Disabilities Act (ADA), which contains pre-pandemic guidance that employers may be obligated to pay the costs of administering mandated tests. The Equal Employment Opportunity Commission’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA” provides, in pertinent part, that if an employer requires an employee it reasonably believes will pose a “direct threat” to the health and safety of themselves or others to be examined by a health care professional of the employer’s choice, then the employer must pay all costs associated with the visit. Employees who are required to work in an area with a high infection rate may pose a “direct threat.” In such circumstances, the employer likely would be required to pay for administering employer-mandated COVID-19 testing. In addition, travel and test-taking time could be compensable under the Fair Labor Standards Act and state wage and hour laws because the employer is controlling how the employee is using his/her time.
As employees return to work and COVID testing and screening becomes more widespread, it is increasingly important that employers know their responsibilities and clarify their policies for their employees. If you have any questions regarding whether your current policies and practices comply with the law/best practices, please contact Susan L. Swatski, Esq. at firstname.lastname@example.org.