As of this writing, many public health experts are cautiously optimistic that cases, hospitalizations and deaths related to COVID-19 will continue to trend downward or at least remain at manageable levels in most areas. The United States might finally be moving from pandemic to endemic.

This means that many employers can, at long last, greenlight the full “return to office” plans that they’ve had on hold for months. As part of such a plan, some organizations are considering on-site COVID-19 testing and vaccinations to guard against an outbreak that could cripple productivity or even shut down an office or facility.

A common question that arises in response to the idea is: Will a program offering COVID-19 testing, vaccinations or both be subject to the Employee Retirement Income Security Act (ERISA)?

Two ways to go about it

The answer depends on how the program is structured and operates. Generally, an arrangement is an ERISA welfare benefit plan if it’s a plan, fund or program established or maintained by an employer to provide ERISA-listed benefits, which include medical services. Here are a couple of ways you could go about offering testing and vaccination:

Augment your existing plan. Your organization could offer COVID-19-related services as part of an existing employer-sponsored group health plan, such as major medical coverage, that’s already subject to ERISA. In fact, group health plans and insurers — but not employers themselves — are required to cover certain COVID-19 diagnostic and preventive services, including vaccines. Providing the services through an existing plan, however, means they’d be available only to plan participants, which might not include every employee.

Create a standalone arrangement. You could offer COVID-19 testing and vaccination apart from your existing health plan. In this instance, the program would have to be evaluated for ERISA status on its own.

COVID-19 tests and vaccines are considered medical care, so whether the program must comply with ERISA depends on whether the other conditions for ERISA plan status are met. A program that doesn’t require an “ongoing administrative scheme” might not be considered a “plan, fund or program” subject to ERISA. However, if ongoing administration is necessary, the arrangement is likely an ERISA plan.

Other applicable laws

An ERISA welfare benefit plan that provides medical benefits is a group health plan, making it subject to additional ERISA requirements and potentially triggering application of other laws — including the Affordable Care Act. But you might be able to structure the services to limit your compliance obligations.

For example, offering COVID-19 testing and vaccination through an on-site medical clinic or an employee assistance program could implicate ERISA, including ERISA’s group health plan rules. However, the program might be treated as an “excepted benefit” exempted from many ACA requirements and other group health plan rules.

Employers providing COVID-19 testing and vaccination directly or through an agent can also face more obligations under the Americans with Disabilities Act (ADA). This is because these actions generally involve medical examinations or disability-related inquiries, which fall under the ADA’s purview.

Finally, remember your obligation to maintain the confidentiality of employees’ health information. These obligations apply to employers under the ADA and to group health plans under the Health Insurance Portability and Accountability Act (HIPAA). Also restricted under HIPAA is the ability of a group health plan to disclose employees’ health information to the employer sponsoring the plan.

A wide array

As you can see, there are a wide array of compliance considerations when establishing an employment-based COVID-19 testing and vaccination program. Discuss the details with legal counsel before making any decisions or communicating anything to employees. We can help you evaluate the idea from a cost perspective.



We highly recommend you confer with your Miller Kaplan advisor to understand your specific situation and how this may impact you.