Notwithstanding the fanfare with which DOL announced the ETS and its subsequent withdrawal (as detailed above), there was very little notice made about a new joint guidance issued by DOL along with the Departments of Health and Human Services (HHS) and Treasury requiring employer health plans – whether fully insured or self-insured – to cover over-the-counter COVID-19 tests at no cost to participants with or without an order from a healthcare provider. The new guidance took the form of frequently asked questions (FAQ) that became effective on January 15. This requirement initially took effect in June of 2020 as an interpretation of obligations under the Families First Coronavirus Response Act (FFCRA) and the later CARES Act, which required coverage of FDA-approved at home COVID testing, but only when the test was ordered by a healthcare provider after an individualized clinical assessment. Now, whether ordered by a healthcare provider or not, any test purchased on or after January 15, 2022 during the COVID-19 public health emergency must be covered by the employer health plan with no out-of-pocket costs to the participants. You can read a more detailed legal analysis here.