The various federal agencies with oversight have recently issued several rules and guidance pieces addressing key issues for employers to consider as they develop and implement COVID-19 vaccine and testing policies. These include vaccine mandate plans and guidance from the Occupational Safety and Health Administration (OSHA), as well as agency guidance on the applicability of the Health Insurance Portability and Accountability Act (HIPAA) privacy rules to COVID-19 vaccination information and the legal status of COVID-19 vaccine premium surcharges and incentives.
These key issues and updates are addressed below.
Vaccine Mandate and OSHA Guidance
On September 9, 2021, President Biden released a COVID-19 Action Plan, in addition to a previously announced federal contractor vaccine mandate. As to the Action Plan, the Occupational Safety and Health Administration (OSHA) is developing an emergency temporary standard (ETS) to require private-sector employers with 100 or more employees to ensure their workforce is fully vaccinated or test negative for COVID-19 every week before coming to work. Employers will need to become familiar with the expected private sector ETS once it is published.
The compliance and legal issues raised by this mandate (e.g., related to required accommodations, payment for testing, discipline for non-complying employees, and potential employer fines) are generally not employee benefits related, but rather are principally related to EEOC/employment law and OSHA safety rules. Note that OSHA has already issued one COVID-19 ETS for the health care and health care support workers, and has also issued guidance related to COVID-19 to help employers and workers not covered by the health care ETS who are in areas of substantial or high community transmission.
HIPAA and Sharing COVID Vaccination Information
On September 30, 2021, the federal Department of Health and Human Services (HHS) issued very helpful Q&A guidance on the applicability of HIPAA to COVID-19 vaccination information, directly addressing a number of misconceptions about when HIPAA does, or does not, regulate disclosures of an individual’s vaccination status. The main takeaways from the guidance is that “The Privacy Rule does not prohibit any person (e.g., an individual or an entity such as a business), including HIPAA covered entities and business associates, from asking whether an individual has received a particular vaccine, including COVID-19 vaccines.”
COVID Vaccine Premium Surcharges and Incentives
On October 4, 2021, the agencies issued guidance in the form of frequently asked questions (FAQs) clarifying the legal status of COVID-19 vaccine premium surcharges and incentives. The guidance also addresses the related issues of determining affordability for purposes of the employer mandate if an employer offers a premium discount or surcharge and the permissibility of coverage exclusions for those who are not vaccinated. In addition, the guidance addresses the requirement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act that plans cover authorized or approved COVID-19 vaccines without cost-sharing.
Conner Strong & Buckelew will continue to provide alerts and updates related to COVID vaccines and employer group health plans as new information becomes available. Please contact your Conner Strong & Buckelew account representative toll-free at 1-877-861-3220. For a complete list of Legislative Updates issued by Conner Strong & Buckelew, visit our online Resource Center.