Policyholder Services

I would like to administer COVID testing on my pre-surgical patients. Is this covered under my OMIC policy?

OMIC understands that, although testing may be readily available in the community, many ophthalmologists may be interested in offering COVID testing within their practices. Some may want to test patients prior to surgery as a precautionary measure. Others may want to test employees on a routine basis for the protection of their patients and other employees. Practices may elect to test employees on a more limited basis, such as to those presenting symptoms or those who have been in close contact with an employee or patient who has tested positive. Or, they may simply want to be prepared should testing through nearby sources no longer be readily available.

How the OMIC policy responds to any resulting claim would depend upon the facts and circumstances of the case, the allegations in the claim, and the population tested:

Testing Patients – Whether offering tests to patients who may have been exposed from close contact with a COVID-positive staff member or another patient, performing tests on each surgical patient as part of the pre-surgery clearance, or more widely testing patients upon request, OMIC-insured ophthalmologists can rest assured that OMIC will cover them. OMIC views this activity to be somewhat similar to other tests insureds perform on their patients. Subject to the standard terms and conditions of the policy, OMIC defends its insureds and pays damages arising from direct patient treatment provided by the insured that results in alleged injury to the patient.

Testing Employees – Whether a claim by an employee arising from COVID testing is covered by OMIC would depend on whether the testing was conducted in the course of the employee’s work and may be subject to state law. Typically, injuries employees sustain during job-related activities are covered under their state-mandated workers’ compensation or other workers’ benefits insurance. If COVID testing occurs in the course of employment, any resulting injury would likely be covered under such insurance. OMIC’s policy excludes coverage for claims arising from injury to employees arising in the course of their work for the insured and from allegations that are covered by workers’ compensation policies or for which the insured may be held liable under workers’ benefits laws.

In their Technical Assistance Questions and Answers document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” updated Sep. 8, 2020,* the EEOC notes that “The ADA requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’ Applying this standard to the current circumstances of the COVID-19 pandemic …an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.” Based on this guidance, OMIC believes that COVID-testing of employees would be subject to workers’ benefits laws and most likely would be covered under Workers’ Compensation coverage.

Testing Others Outside the Practice – Testing provided to the general public would not be covered under the OMIC policy due to OMIC’s scope of practice exclusion, which limits coverage to services rendered within the “ordinary and customary scope of practice of an ophthalmologist.”

OMIC developed sample consent forms and other risk management resources to assist insureds who elect to administer COVID testing to the practice’s patients and/or employees.

Updated 12/8/2020

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