Well, the agen­cies final­ly saw things com­ing after they came, and have issued joint guid­ance about what to do with unvac­ci­nat­ed employ­ees.  The Depart­ments of Labor, Trea­sure and Health/Human Ser­vices have declared the following:

1)  HIPAA gen­er­al­ly pro­hibits a group health plan from dis­crim­i­nat­ing among sim­i­lar­ly sit­u­at­ed indi­vid­u­als based on a health fac­tor, which is how this is being described. “Well­ness” pro­grams, which allow an incen­tive or dis­in­cen­tive, are “par­tic­i­pa­to­ry” (open-end­ed with no reward based on health fac­tors, sta­tus or enroll­ment) and “con­tin­gent” (rewards based on par­tic­i­pa­tion).  For the lat­ter, the incen­tive lim­it is 30% of the premium.

The agen­cies have deemed vac­cine pre­mi­um incen­tive pro­grams as “activ­i­ty only” say­ing that receipt of a vac­cine is a health fac­tor that trig­gers the 30% lim­i­ta­tion, and sub­ject to sev­er­al conditions:

               a) Pro­gram is rea­son­ably designed to pro­mote health or pre­vent disease

               b) A rea­son­able alter­na­tive must be pro­vid­ed for those for whom it is unrea­son­ably dif­fi­cult due to a med­ical con­di­tion or if it is med­ical­ly inad­vis­able to obtain a COVID 19 vaccine

               c) The reward must not exceed 30% of the total cost of employ­ee only coverage

2)  Con­di­tion­ing eli­gi­bil­i­ty for ben­e­fits or cov­er­age for oth­er­wise cov­ered items or ser­vices is NOT per­mis­si­ble under HIPAA

3)  If the incen­tive is a pre­mi­um dis­count, the dis­count is treat­ed as not earned and there­fore afford­abil­i­ty is based on the assumed increased pre­mi­um cost for the par­tic­i­pant, for ACA dis­crim­i­na­tion test­ing purposes.

The EEOC issued FAQs in May say­ing that the ADA (Amer­i­cans with Dis­abil­i­ties Act) well­ness rules do not apply where the employ­er mere­ly requests proof of vac­ci­na­tion BUT an employ­er must still pro­vide a rea­son­able accom­mo­da­tion to an employ­ee who can­not get the vac­cine due to a disability

For GINA, the EEOC said that an incen­tive for a fam­i­ly mem­ber get­ting vac­ci­nat­ed is gen­er­al­ly per­mis­si­ble and no incen­tive lim­its apply, as long as the fam­i­ly mem­ber gets the vac­cine from a third par­ty and not the employ­er or its agent.