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.
