Providing incentives for employees to get the COVID-19 vaccine continues to be on the minds of organizations as vaccinations pick up speed. However, concerns about privacy and the shifting positions on wellness program regulation has left many employers wary about implementing more robust incentives. According to Bloomberg, two GOP members of Congress are urging the Equal Employment Opportunity Commission (EEOC) to provide some clarity.

Employer-sponsored wellness programs come in many forms, such as:

• An education campaign to inform employees about healthier eating habits.

• A gym membership subsidy.

• A health risk questionnaire to help employees be more informed about their health risks.

• A walking program designed to decrease sedentary lifestyles.

• Making health coaches available for engagement on general wellness and/or chronic health issues.

• Satisfaction of key health-related measures – heart rate, cholesterol level, body mass index (BMI).

Such programs are often tied to group health plans and the incentives for satisfying program requirements come in the form of cash payments, reduced contributions toward premiums, points that can later be redeemed, and other creative arrangements. A key compliance challenge for many of these programs is the size of the incentive – the underlying issue being whether the size of the incentive causes a loss of voluntariness. Programs that are part of group health plans generally are subject to regulations issued under the Affordable Care Act (ACA) and the Health Insurance Portability and Accountability Act (HIPAA), although other rules including those referred to below may apply. The ACA/HIPAA regulations are relatively clear on incentive limits and are not what GOP members of Congress and business leaders have expressed concerns about.

Under the Americans with Disabilities Act, disability-related inquiries of employees generally must be job-related and consistent with business necessity, unless made in connection with a voluntary wellness program. It is that exception, specifically whether the program is voluntary, that is causing much of the concern about vaccination incentive programs. We outlined a brief history of the EEOC’s position on voluntariness here.

Depending on the design of a COVID-19 vaccination incentive program, disability-related inquiries may be involved, raising the question about voluntariness. Is a $50 gift card too much, what about $500, will that render the program involuntary? How about 2 days off with pay? It is worth noting that, according to the EEOC,

“[s]imply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” 

On January 7, 2021, the EEOC proposed a new approach that might wind up providing employers some certainty, but those regulations have been withdrawn following a regulatory freeze issued by the White House on January 20, 2021. Under those proposed rules, however, incentives are permitted under such programs provided they are de minimis.

Sen. Richard Burr (R-N.C.) and Rep. Virginia Foxx (R-N.C.) observed to the EEOC in a letter obtained by Bloomberg, looking for a response by April 20, 2021:

“Employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws such as the Americans with Disabilities Act (ADA) and other statutes within the jurisdiction of the EEOC”

Additionally, the data privacy, confidentiality, security, and record retention of the information needed to administer such programs also raises compliance issues under federal and state law. This includes the confidentiality rule under the ADA, the HIPAA privacy and security regulations for programs that are part of group health plans, OSHA record retention requirements, and state reasonable safeguard and breach notification requirements.

Many organizations have moved forward offering a variety of incentive programs to spur employees to get a COVID-19 vaccine. The level of legal risk, if any, for those programs is a function of several factors – does the program include a disability-related inquiry, how large is the incentive, is the program part of a group health plan, how is the program administered and enforced, and how is the privacy and security of the data maintained.

It remains to be seen whether the EEOC will provide greater clarity on the voluntariness of incentives for COVID-19 vaccination programs. In the meantime, employers will need to think carefully about the design and implementation of their programs.