With parts of the country facing rising COVID-19 case numbers and hospitalization rates, the renewed spread of the virus coupled with lagging vaccination rates have prompted many employers to consider various ways to encourage employees to receive vaccinations.

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated and expanded their technical assistance Q&A addressing various COVID-19-related workplace issues to aid employers in making decisions about return-to-work and vaccine-related programs. The guidance addresses topics including vaccine mandates, vaccine incentives, vaccine-related accommodations, and related confidentiality issues. Previously, we issued a an article on this guidance, available here.

Unfortunately, the guidance does not fully delve into the employee benefit considerations implicated by vaccine programs and vaccine incentives. These programs raise significant employee benefits and employment law questions.


Note: A key issue we have reviewed is the status of incentive programs under the HIPAA wellness program regulations. Although the regulatory agencies have yet to address this issue, we believe programs that reward or penalize an employee based on vaccination status will be subject to the HIPAA wellness program requirements if the reward or penalty is provided through or in connection with a group health plan sponsored by the employer. Furthermore, we believe  such programs likely will be treated as health-contingent programs, given the fact that some individuals are unable to receive the vaccination due to health concerns.


In the discussion below, we identify the employee benefit compliance issues for various types of vaccine and vaccine incentive programs about which we have been receiving questions.  For those interested in a more detailed discussion of the relevant legal framework, we also have provided a more comprehensive overview after the examples.

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