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August 18, 2021
Now that COVID vaccinations are readily available to all but young children, more employers are looking to encourage, and in some cases mandate, employees and their family members to get vaccinated. There is certainly flexibility for employers to do so, but employers need to be aware of certain compliance requirements that may apply depending upon what type of policy the employer implements.
Employers are generally permitted to require vaccinations so long as a reasonable accommodation is offered to those with a disability (in accordance with the Americans with Disabilities Act (ADA) or religious-based objection to receiving the vaccine). You can see more guidance on this from the EEOC in subsection K here:
opens in a new window https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
However, for employers considering a mandatory vaccination program for employees, we recommend also discussing the details of the program with HR/ employment law counsel to discuss any specific restrictions on how the information can be collected, used, and stored. There may be additional considerations if the information is asked as part of the hiring process. Employers should also discuss with counsel any consequences the employer wishes to impose on those employees choosing to remain unvaccinated (e.g., not being able to work onsite, reduction in pay, termination of employment, etc.).
NOTE: There are a few states which have passed regulations that prohibit discrimination in the workplace tied to vaccination status. In such states, a mandatory policy may be prohibited completely.
Employers are generally allowed to provide incentives to employees who obtain the COVID vaccine or impose a penalty/surcharge on those who choose not to be vaccinated so long as the employer is not overly aggressive with the amount of the incentive or penalty. It may also be necessary to provide an alternative or an accommodation to those who cannot participate due to health status or a disability.
Providing an incentive or imposing a penalty/surcharge is a type of wellness program likely subject to wellness rules set forth under HIPAA nondiscrimination rules. In addition, depending upon who administers the vaccination, the program may be subject to EEOC wellness rules.
NOTE: There are a few states which have passed regulations that prohibit discrimination in the workplace tied to vaccination status. In such states, an incentive (or surcharge) may not be acceptable.
While mandatory vaccination policies and incentives or surcharges tied to vaccination status in the form of a wellness program are generally permitted, we recommend that employers do not condition eligibility or group medical plan coverage levels based on vaccination status.
HIPAA nondiscrimination rules broadly prohibit discirmination based on health status or a health factor (see Treas. Reg. §54.9802-1(b)(1))., will not allow the plan to deny eligibility for those who have not received the COVID vaccination. Under HIPAA rules, “receipt of healthcare” is considered a health factor. Vaccinations are likely a health factor and subject to HIPAA nondiscrimination rules because the individual receives health care in the form of the vaccine. Therefore the employer should not exclude individuals from participating in the employer’s group medical plan or limit coverage levels (e.g., for COVID- related treatment) for employees or their family members who are not vaccinated.
The views and opinions expressed within are those of the author(s) and do not necessarily reflect the official policy or position of Parker, Smith & Feek. While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept liability for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it.