The attorneys behind the Employer Law Report Blog present the final part of our three-part series on the COVID-19 vaccine and employer considerations.
On Jan. 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) proposed new rules that would apply to employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Some commentators have suggested that these rules may affect employers who plan to offer an incentive to encourage employees to receive the COVID-19 vaccine. Less than two weeks later, the Biden Administration issued a regulatory freeze and instructed agencies to withdraw unpublished rules, including the proposed wellness program rules. For now, it is important to be aware of the rules because they may indicate the direction the EEOC intends to take when the freeze is lifted.
Wellness programs are workplace programs designed to promote health and prevent disease by often offering incentives to employees who participate. These incentives may be used to reward employees who complete certain health-related activities (such as participating in a biometric health screening) or reach certain health milestones (like reaching a certain cholesterol level or completing a smoking cessation program). In some cases, the incentives offered include reduced group medical insurance premiums or cash awards.
Americans with Disabilities Act and wellness programs
The ADA applies to wellness programs that include disability-related inquiries or medical examinations. Disability-related inquiries are defined as questions that are likely to elicit information about an employee’s disability. Medical examinations are procedures that seek information about an individual’s physical or mental health. The ADA applies to wellness programs that include health risk assessments or biometric health screenings, since these are considered disability-related inquiries.
The ADA generally prohibits employers from requiring employees to answer disability-related inquiries or submit to medical examinations, except in very specific circumstances justified by job relatedness and business necessity. However, the ADA provides an exception to this prohibition for wellness programs in which an employee’s participation is voluntary.
Offering incentives to employees to encourage participation in wellness programs raises the issue of whether an employee’s participation is considered voluntary. If an incentive is so rich that a loss of the incentive has a material economic impact, then arguably, participation in the wellness program is not truly “voluntary.” In 2016, the EEOC issued rules that addressed this issue. Under these rules, an employer’s use of an incentive valued at up to 30 percent of the cost of self-only coverage would not make an employee’s participation in the program involuntary. However, this rule was vacated by the U.S. District Court for the District of Columbia in 2017, leaving the law on this issue unsettled ever since.
Now, the EEOC has issued new proposed rules that would clarify how great of an incentive may be offered to employees who participate in a wellness program without violating the ADA. Under the proposed rules, most wellness programs that fall under the ADA may offer no more than a de minimis incentive to employees. Examples of de minimis incentives provided in the guidance are a water bottle or gift card of modest value. Examples of incentives that would violate the de minimis threshold include paying for an employee’s annual gym membership or free airline tickets.
Genetic Information Nondiscrimination Act
Many employers who offer wellness programs also allow employees’ spouses and other family members who are enrolled in the employer’s health plan to participate. GINA applies to wellness programs that collect any information about the manifestation of diseases and disorders of an employee’s family member. Like under the ADA, wellness programs that collect family medical information are permissible only if participation is voluntary. The EEOC’s new proposed rules for wellness programs governed by GINA mirror those outlined above with respect to the ADA. Thus, under the proposed rules, employers may only offer a de minimis incentive for an employee’s or their family member’s participation in a wellness program that is governed by GINA.
Possible connection to COVID-19 vaccine incentives
Many employers are considering incentivizing employees to take the COVID-19 vaccine. These incentives may take the form of cash bonuses. It is currently unclear whether an employer’s COVID-19 vaccination program would fall under the ADA rules concerning wellness programs.
The EEOC has clarified in its Technical Assistance guidance issued on Dec. 16, 2020, that administering the COVID-19 vaccine is not considered a medical examination under the ADA. Likewise, asking an employee whether he or she has been vaccinated or requesting proof of vaccination is not considered a disability-related inquiry. However, generally, patients who receive a vaccine are asked a series of pre-screening questions to ensure that there is no health-related reason the person should not receive the vaccine. The EEOC has cautioned that these pre-screening questions may be considered disability-related inquiries under the ADA.
If the pre-screening questions the employee is required to answer before receiving the COVID-19 vaccine are considered disability-related inquiries, an employer wellness program incentivizing COVID-19 vaccination may be subject to ADA wellness program requirements. Thus, if the EEOC’s proposed rules are enacted, these incentives would have to fall under the de minimis threshold outlined above.
The EEOC rules have been proposed but are not yet binding. In addition, the rules have been withdrawn pending approval from Pres. Joe Biden’s appointed agency head. That being said, the rules still provide a helpful illustration of the EEOC’s thoughts on wellness programs. Employer representative groups have pressed the EEOC for guidance on whether COVID-19 vaccine incentives will be considered covered by the wellness program rules. Until further clarification comes from the EEOC, employers who wish to offer incentives to encourage employees to receive the COVID-19 vaccine should consult with legal counsel before implementing such a program.
To read the first blog in our series, “COVID-19 vaccine for employees: Can you require it? Should you require it? Can you offer incentives to encourage it?,” by Jyllian Bradshaw and Avi Allen, click here. To read the second blog in our series, “Vaccine policies and workers’ compensation,” by Becca Levine, click here.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.