Reminder: COVID-19 Vaccines and Employer Incentives

What’s an employer to do about it’s wellness programming respecting COVID-19 vaccinations? Exercise caution. This summer the EEOC provided guidance for employers on navigating the murky waters where the ADA, GINA, and wellness incentives intersect.

Employers may offer COVID-19 vaccination incentives to employees and their family members, but the entity providing the vaccination affects the rules. As expected, vaccine information must be kept confidential.

Neither the ADA nor GINA limit incentives in these situations:

• If the employee receives the vaccine within the community (think at the pharmacy or public health department) the Employer does NOT make a disability-related inquiry for ADA purposes by requesting the employee voluntarily confirm receipt of the COVID-19 vaccine.
• If the Employer requests proof of a “community” vaccination, the Employer does not violate GINA by requesting information about the employee’s family member.

Incentive limits apply to the Employer (or their agent)-administered COVID-19 vaccines.

• ADA: an employee incentive must not be “so substantial as to be coercive.” No elaboration on the degree of these adjectives provided by the government.
• GINA: incentives are not limited for an employee’s own vaccination; however, no incentive may be offered to an employee in exchange for a family member’s vaccination (this is considered genetic information, aka, family medical history, under the law). But, given the right conditions, an employee’s family member may be given a vaccination, as long as the employee (1) does not receive an incentive if the family member receives a vaccination, or (2) is not penalized if the family member chooses to decline a vaccination.

Don’t forget basic principles of both the ADA and GINA when evaluating vaccine options.

• Under the ADA, employers may not discriminate and may need to provide reasonable accommodations to employees if disabilities or religious beliefs prevent vaccination, and therefore prevent the employee from earning the same incentive as other employees.
• Employers must apply this guiding principle when considering a COVID-19 test (considered a medical test under the ADA) before permitting an employee to return to the workforce: is the test is “job-related and consistent with business necessity?” The test must be performed because an employee “with the virus would pose a direct threat to the health of others.”

Consult your counsel and our Dashboard’s Geek Out! page on Wellness Plan Compliance when updating your wellness program offerings to refresh your knowledge of the ADA, GINA, and HIPAA incentive guidelines in this volatile and ever-changing regulatory environment.

Content summarized from:

Thomson Reuters Article: EEOC Gives Green Light to Employers’ COVID Vaccine Incentives, With Important Caveats, June 10, 2021.

Guidance from the EEOC: What you Should Know Flyer