As COVID-19 vaccines become more available, employment-based programs requiring or incentivizing employee vaccination will become more commonplace. In a previous post, we covered recent employer guidance from the CDC, with a particular focus on mandatory workplace testing programs. This post examines how an employer might design a voluntary workplace vaccination program using incentives to encourage participation, and how to avoid potential pitfalls in doing so.
According to EEOC guidance (see questions K.1 through K.7), vaccination itself is not an ADA-covered medical examination. However, screening questions given prior to vaccination may implicate ADA rules prohibiting disability-related questions and the limitations imposed on the information those questions elicit.
The EEOC suggests two ways to navigate around the ADA in this context. First, in the case of a mandatory vaccination program, the EEOC counsels employers to refer employees to a third party that is unaffiliated with the employer, such as a pharmacy or other health care provider, to administer the vaccine. Second, as an alternative, the EEOC advises employers to offer employees the opportunity to receive the vaccination on a purely voluntary basis. We focus on this second possibility here.
Permissibility and Limitations of Voluntary Vaccination Incentives
No federal law currently prohibits employers from encouraging or facilitating vaccinations for their employees under a voluntary program (i.e., employees choose whether to be vaccinated). In this case, employers must likewise ensure that pre-vaccination disability-related screening questions are voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine, but it may not retaliate against, intimidate, or threaten the employee for refusing to answer any screening questions. Armed with the understanding that voluntary vaccination programs are generally permissible provided they are truly voluntary, the question arises: can employers affirmatively incentivize employees to become vaccinated? And if so, how do employers design incentives that ensure their vaccination program remains truly voluntary and does not in effect force participation in potential violation of the anti-discrimination laws? To date, the EEOC has not answered these seminal questions. On February 1, 2021, a group of prominent business associations, including the U.S. Chamber of Commerce, sent a letter to the EEOC requesting that the agency "quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the [ADA] and other laws enforced by" it. Until the agency does so, this will remain an unresolved, hot button issue for businesses attempting to utilize vaccination incentives as part of a larger return to work program.
Earlier this year, the EEOC endeavored to address a somewhat similar issue involving incentives in the context of voluntary wellness programs. Two proposed rules issued by the agency (one under the ADA and the other under GINA) sought to limit the value of incentives employers could use to encourage employee participation in voluntary wellness programs, setting forth the permissibility of only de minimis incentives such as "water bottles" and "small dollar gift cards." But, with the recent change of presidential administration, these EEOC proposals have been removed from the agency's website and are otherwise subject to a regulatory freeze issued by the Biden Administration. It is unclear at this time whether the EEOC will issue similar or different rules regarding wellness program incentives in light of the new administration.
It is also important to note that the EEOC has not taken the position that voluntary COVID-19 vaccination programs are akin to "wellness programs" to which a similar rule might be applied, and has not otherwise opined on whether incentive ceilings might exist for voluntary vaccination programs under the ADA or GINA. In the absence of such restrictions or guidance, we recommend that employers interested in providing incentives should contemplate and design programs that strike the right balance - incentivizing voluntary participation without creating a "haves" and "have nots" system that essentially compels participation.
Compliance with the ACA Insurance Market Reforms
Some commentators have also raised the very real prospect that an employer-sponsored COVID-19 vaccination programs would violate the Affordable Care Act ("ACA"), which requires all group health plans to comply with certain requirements, including offering no-cost preventive services. Section 3(1) of ERISA defines the term "employee welfare benefit plan" as a plan maintained by an employer to the extent it "is established or is maintained for the purpose of" providing medical benefits or benefits in the event of sickness." Such an arrangement is regulated as a "health plan" under the ACA unless an exception applies.
Despite these stated concerns, we are currently of the view that vaccination programs are unlikely to implicate ERISA in most instances. Mandatory vaccination programs are generally not necessarily established or maintained for the purpose of providing employees with medical benefits or benefits in the event of sickness. Instead, the purpose of such a program for most employers is to support the employer's ongoing business operations in light of COVID-19 restrictions. While this reasoning is admittedly less compelling in the case of a voluntary vaccination program, it strikes us as only marginally less so. The purpose of a voluntary program is the same as a mandatory program - the support of ongoing business operations. The only difference, as best we can tell, is the level of compulsion. Still, as employers design the contours of a vaccination program, attention should be paid to these issues.
Given the lack of guidance in this area, employers considering vaccination programs and associated incentives should tread carefully, remaining mindful of anti-discrimination protections and compliance with the ACA. Further, employers choosing to provide incentives to employees should do so in a neutrally applicable way that does not favor one protected group over another. Because of the sensitive issues involved, the design of any vaccination program should involve legal counsel in addition to human resources and operations teams, and should focus on the employer's particular needs vis-à-vis its particular workforce.
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