EEOC Vaccine Incentive Guidance and Withdrawal of Proposed Wellness Incentive Rules

March 8, 2021

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is withdrawing its January 2021 proposed rules regarding the incentives employers can provide their employees as part of a wellness program without violating the Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA). Below is key information on this important decision.

Proposed Wellness Rules Withdrawn

As we reported in our January 2021 update, the January 2021 proposed rules had stated that for certain programs employers could offer only “de minimis” incentives for employees participating in a wellness program. The proposed rule generally required most incentives to have no more than de minimis value (e.g., a water bottle or small gift card). With the withdrawal of the January 2021 proposed rules, employers offering wellness programs with disability-related inquiries and/or medical exams should continue complying with the ADA and GINA wellness incentive rules that have been in place since 2018. See our December 2018 update for an overview of those rules.

Vaccine Incentives

Wellness programs, particularly those programs that offer incentives for participation, may be subject to nondiscrimination rules. Concerns about these rules led the EEOC to release the January 2021 proposed nondiscrimination regulations. With the removal of the rules, there continues to be uncertainty with regard to the ability of employers to offer incentives in wellness programs subject to the ADA and GINA. At least for now, although certain nondiscrimination requirements still apply to certain wellness programs, employers should also carefully consider the existing EEOC guidance under the ADA generally when determining the level of incentives they use with their wellness programs that collect medical information. There are existing EEOC considerations for employers that may differ depending on whether the employer will be encouraging employees to seek vaccinations or if they will be involved in the vaccine administration.

The EEOC released updated guidance on the responsibilities and rights of employers and employees related to the COVID-19 vaccine, including in cases where employers require employees to be vaccinated. The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, includes a section providing information to employers and employees about how a COVID-19 vaccination interacts with other federal guidelines and laws related to anti-discrimination.

• An incentive tied to vaccination without employer involvement (encouraging employees to get vaccinated) should not implicate the ADA limits on incentives because any pre-vaccination medical questions would not tie back to the employer. According to the EEOC’s guidance (see Section K), requiring proof of vaccination is also not a medical inquiry under the ADA, so an employer would be free to ask for proof of vaccination in order to provide the incentive.
• For an employer involved with the vaccine administration, it is likely ADA restrictions would apply, even if the employer has contracted with a third-party to administer the vaccine. So in this case the incentive likely must be limited in order for it to be considered a “voluntary” program under the ADA. According to the EEOC’s guidance (see Section K), the administration of a vaccine alone does not constitute a medical examination, but the questions an employee must answer before receiving the vaccine will almost certainly qualify as a disability-related inquiry under the ADA.

Employers should watch for any developments related to the EEOC’s wellness rules and review their vaccine programs with labor counsel as these programs could open them up to discrimination claims.

Conner Strong & Buckelew continues to monitor developments and will provide additional information as it becomes available. Please contact your Conner Strong & Buckelew account representative toll free at 1-877-861-3220 with any questions. For a complete list of Legislative Updates issued by Conner Strong & Buckelew, visit our online Resource Center.