EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading

EEOC Issues Final Rules Addressing the Implications of ADA/GINA on Wellness Programs

WellnessToday, the Equal Employment Opportunity Commission (“EEOC”) released its final rules to amend regulations implementing Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to workplace wellness programs.  The EEOC had originally issued two Notices of Proposed Rulemaking in 2015 to revise current regulations as a result of the confusion surrounding how both the ADA and GINA impact wellness programs under the Affordable Care Act (“ACA”) and its regulations.  The final rules released today largely mirror the proposed regulations, with some important changes.  They will apply only prospectively starting the first day of the first plan year that begins on or after January 1, 2017 for the applicable health plan.

Below are the major provisions from each rule, as well as a discussion of the current legal landscape for employer wellness programs based on recent lawsuits brought by the EEOC.  Although the guidance from the EEOC is long overdue, the requirements these final rules impose do not completely align with the ACA, its regulations, or the intent to promote the use of wellness programs under the ACA.

Highlights of the Final Rule Revising ADA Regulations

As we discussed in a prior post, a major focus of the EEOC’s final rule is to address when a wellness program will be viewed as voluntary under the ADA.  As employers may already be aware, the ADA generally prohibits Continue reading

EEOC Expands Permissible Wellness Program Incentives Under GINA

On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Proposed Rulemaking to amend regulations implementing Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to wellness programs offered through a group health plan.  With this new rule, the EEOC intends to broaden the use of incentives to encourage voluntary participation in employer-sponsored wellness programs under group health plans.  Specifically, the EEOC clarifies that an employer can offer a limited incentive to an employee’s spouse if the spouse (1) is covered by the employee’s health plan; (2) receives EEOC NPRM for GINAhealth or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current health status.  Such information is often provided through a health risk assessment.

GINA prohibits an employer from using an employee’s or applicant’s genetic information in making employment decisions.  Thus, an employer is prohibited from requesting genetic information from an employee unless the employee voluntarily accepts health or genetic services, including those offered as part of a wellness program.  Even under this exception, however, current regulations restrict wellness programs from requiring employees to provide genetic information in order to receive an incentive.  The proposed rule makes clear that this restriction does not apply to an employee’s spouse because there is a minimal chance that an employer could obtain information about an employee’s genetic make-up from the current or past health status of an employee’s spouse.  For this reason, the proposed rule is limited to incentives for information about an employee’s spouse and does not include an incentive for current or past health status of an employee’s child as the EEOC believes that information could provide insight into the genetic make-up or predisposition of an employee.

Similar to other laws regulating incentives connected to wellness program participation, incentives permitted under GINA would not be allowed to exceed 30% of the total cost of coverage for the health plan.  Therefore, the total incentive for an employee and spouse to participate in the wellness program, together, may not exceed 30%.  For instance, the EEOC explains that if the total cost of coverage is $14,000.00, the incentive offered for providing information on current or past health status could be no more than $4,200.00 total for both an employee and his or her spouse.  Furthermore, the portion of the incentive attributable to the employee, alone, cannot be more than 30% of the cost of self-only coverage.  The proposed rule allows for a reward or penalty and the incentive can be financial or “in-kind” (i.e., time-off awards, prizes, or other items of value not to exceed 30% of the cost of coverage).  To participate, the spouse would have to provide knowing, written, and voluntary authorization for the employer to collect genetic information, just like an employee.

This proposed rule appears to be part of the EEOC’s continued effort over the last year to clarify the impact of federal statutes regulating health-related discrimination on wellness programs permitted and promoted under the Affordable Care Act.  For instance, as we discussed in a prior post, the EEOC put out a proposed rule to address the Americans with Disabilities Act’s (“ADA”) impact on employer wellness programs last April.  That rule clarifies when participation would be considered voluntary under the ADA and addresses incentives associated with participation.  Both of these proposed rules come amidst a recent upswing in litigation over wellness programs, with the EEOC pursuing claims against employers for violating non-discrimination laws for which it had yet to even provide clear guidance.

At this point, this is only a proposed rule and could potentially change based on comments received by the EEOC.  Employers currently have the opportunity to submit comments on the proposed rule until December 29, 2015.  Although the proposed rule is not yet controlling and could be altered, employers should continue to take proactive steps to ensure a compliant wellness program based on current regulations and the requirements likely to come down the pipeline.  The ability to offer incentives for spouse’s to provide current and past health status information could benefit employers as they are continuing to look for ways to cut health care costs, as long as those incentives are compliant and the program is implemented in a manner that meets GINA’s requirements.