Alert / Retirement, Risk Management, Employee Benefits
Fever screens and benefits continuation: Two common COVID-19 questions

March 19, 2020

Employers everywhere are acting fast to protect their employees, their products and their customers from the coronavirus and its fallout. Two common questions are, “Can we screen our employees for a fever?” and “If we want to continue benefits for employees who’d otherwise lose eligibility, can we?”

The answers are, probably and probably. Here’s the skinny:

Fever screens

A fever screen is a form of medical examination that creates issues under the Americans with Disabilities Act (ADA). Typically, medical examinations need to be job-related and consistent with business necessity. For example, the employer should have a reasonable, objectively based belief that the employee’s ability to perform essential job functions will be impaired by a medical condition, or that the employee will pose a direct threat to self or others due to a medical condition.

That means that, under normal circumstances, widespread fever screening of employees who objectively appear asymptomatic would be prohibited. But these are not normal circumstances, and in 2009 the Equal Employment Opportunity Commission (EEOC) carved out a limited exception for fever screening during a pandemic, an exception equally relevant today.

Lockton comment: The pandemic at the time was an influenza outbreak, but the EEOC’s 2009 advice is just as pertinent now, as the World Health Organization has designated the coronavirus a pandemic. In fact, on March 19, the EEOC updated the guidance to refer to the coronavirus.

The EEOC included the following in its pandemic-related guidance:

During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever. [Emphasis supplied.]

So, if an employer is inclined to conduct fever screens, what are the guardrails?

  • First, the pandemic must be widespread in the community, as assessed by state or local health authorities or the CDC. Significantly, in its update to the pandemic guidance, the EEOC concluded that this requirement has been satisfied with respect to the coronavirus, stating, "Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature."
  • Second, perform the testing in a nondiscriminatory manner – don’t single out employees by race, sex, etc. for the fever screening. Be sure to treat as compensable time the period you require the employee to participate in the screening.
  • Third, tell the employees that the testing is intended to determine only whether the employee has coronavirus symptoms (and, in fact, that should be the only reason for the testing).
  • Fourth, have the screens conducted by medical professionals, if available in the workplace. If they’re not, utilize management or supervisors to conduct the testing, and ensure they’re trained on how to do it. Conduct the testing with as much privacy as reasonably possible, and not within view of other employees.
  • Fifth, be as noninvasive as reasonably possible. There are a variety of temperature-gauging devices available that are far less intrusive than an oral thermometer.
  • Sixth, treat the results as appropriately confidential. Where warranted, employers may be permitted to share relevant evidence with public health officials, as part of the community’s pandemic risk mitigation efforts led by those officials. But don’t keep the information in the employee’s personnel file, for example.
  • Seventh, if the employees are in a collective bargaining unit, ensure nothing in the bargaining agreement prohibits the screening.
  • Finally, remember that an employee might nevertheless be infected with the coronavirus and not have an elevated temperature. A negative screening result does not guarantee the employee is not infected.

Lockton comment: The Occupational Safety and Health Administration (OSHA) has issued general guidance to employers on measures to ensure the safety of their employees during this pandemic. That guidance is worth reviewing.

Continuing eligibility during reduced hours or furlough

Many employers are reducing hours for or even furloughing (an involuntarily leave of absence, short of employment termination) employees, but want to ensure continued benefits eligibility for the employees. They ask, “Is this permissible?”

First, a general observation: Your benefits plan documents should describe eligibility rules, and you’re required by ERISA (for ERISA employers, anyway) to administer the plan in accordance with its terms. If those rules in your plan don’t deliver the result you want for employees whose hours are being reduced or who are being furloughed, you can amend the plan to get the result you want.

Lockton comment: For insured benefits, the insurance contract might limit your discretion to change eligibility, and for self-insured benefits you’ll want to confirm that your stop-loss insurer has no concerns about the eligibility changes you want to make.

But know this: It’s possible – even likely – a furloughed employee or an employee whose hours are reduced hasn’t lost eligibility at all, at least not for medical benefits. Again, check the plan’s eligibility rules. Many employers now tie eligibility to ACA full-time employee status and determine that status by tracking average hours of service per week or month over a prior measurement period, usually a 12-month period.

That is, employees’ hours are measured over an extended measurement period, and those employees averaging at least 30 hours of service per week are considered ACA full-time employees – and thus eligible for at least medical coverage – for an ensuing “stability period,” which is typically the plan year.

Many employees whose hours are affected by the coronavirus are in the middle of such an ACA stability period for which they earned ACA full-time employee status last year. As long as the employee hasn’t had employment terminated, eligibility likely continues through the end of the current plan year.

Which begs another question: If eligibility turns on average hours of service over an ACA-related measurement period, what happens when, due to weeks or months of reduced or inactive service this year, the employee fails to average adequate hours to be considered eligible next year?

If the employer is concerned about that, one solution is to amend its plan to award deemed hours of service for periods during which the employee would have worked, but now will not work due to the coronavirus. Such an amendment should be cleared with the medical insurance carrier or stop-loss insurer, and carriers for other insured benefits for which the eligibility will be affected by the change.

Subsidizing COBRA: Taking the sting out of a loss of eligibility

Other employers will let their benefits plans’ eligibility rules play out as written, meaning that many employees may lose eligibility due to a reduction in hours. Certainly, employees whose employment is terminated will lose eligibility. All of these employees are entitled to an offer of COBRA coverage.

Lockton comment: Church plans are not subject to COBRA, but often adhere to the COBRA rules voluntarily.

Employers wonder whether they can pay all or a portion of the employees’ COBRA premiums for a period of time.

They may, but should note that when the COBRA subsidy terminates (say, after three or six months), the end of the subsidy does not trigger a special enrollment right under HIPAA that would allow the employee’s spouse, for example, to force their way onto their employer’s plan midyear and enroll the employee as well. The initial loss of eligibility is such a HIPAA special enrollment event, however, so it might be better for the employee and spouse to leap to spouse’s plan immediately, rather than waiting until after they exhaust the COBRA subsidy.

Paying the employee’s premium during furlough

Some employers are considering paying the healthcare premiums for their employees while they’re furloughed and are not being paid, but would like the employees to repay the amount the employer advanced them once they return to work.

This is generally permissible (the Family and Medical Leave Act (FMLA) leave rules provide expressly for it), but there are some wrinkles to be aware of. If the catch-up payments by the employee, when the employee returns, will occur across the cusp of a new cafeteria plan year, there are issues with collecting the back premium on a pretax basis (the IRS allows for this in the FMLA context, but not necessarily in other situations). In the current climate, however, we suspect the employer’s subsidy will apply for only the short term, and that recoupment could occur before the end of the year. If it extends later, the recoupment in the next cafeteria plan year should be post-tax, out of an abundance of caution.

Where practicable, the employer might also want to get the employee’s agreement in writing (if only an email) to repay the premium paid by on the employee’s behalf by the employer, but if that’s not possible we nevertheless think most employers will not encounter a problem with employees later, as the recoupment begins.

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