Before Your Business Rewards Employees for Getting the COVID-19 Vaccine, Read This. (It May Save You a Lawsuit.)

Recently, HR Partners has received several questions related to employers incentivizing employees to receive the COVID-19 vaccine.

On January 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations governing wellness programs under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The new guidance states that employers generally may not offer more than “de minimis” incentives to take part in an employer’s wellness program that asks participants to provide medical information.

How does this relate to incentives for employees willing to receive the vaccine as part of an employer wellness program? The EEOC has not offered a specific definition of “de minimis”, however, they do offer examples of qualifying incentives: water bottles or gift cards of modest value.

Additionally, there is a “safe harbor” provision which creates exceptions for certain incentives related to health-contingent wellness programs that are part of or qualify as group health plans, such as premium discounts. The proposed rule interprets the safe harbor as permitting health-contingent wellness programs that are part of, or qualify as, group health plans to offer the maximum allowed incentive under the 2013 HIPAA regulations (currently thirty percent (30%) of the total cost of coverage or fifty percent (50%) to the extent the wellness program is designed to prevent or reduce tobacco use), as long as they comply with the Health Insurance Portability and Accountability Act (“HIPAA”) requirements for such plans.

Currently, the EEOC’s proposed rule is not final, and is currently open for public comment. More guidance is expected once the rule is finalized.

Until the rule is finalized, and until the vaccine is readily available to the public, HR Partners recommends that employers only encourage, but not incentivize employees to receive the vaccine.

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