October 04, 2021

COVID-19 Vax Incentives & Reasonable Accommodation

On October 4th three federal agencies published some FAQ’s related to group health plans and COVID-19 vaccination programs.  While I do not practice in the areas of health, welfare or pension, the questions about incentives caught my attention. I wondered how the guidance might address reasonable accommodation under the Americans with Disabilities Act (ADA).

Q3: “May a group health plan…offer participants in the plan a premium discount for receiving a COVID-19 vaccination?”

A: A qualified “Yes.”  The wellness plan that provides the premium discount “must provide a reasonable alternative standard to qualify for the discount. For example, the wellness program may offer a waiver or the right to attest to following other COVID-19-related guidelines to individuals for whom it is unreasonably difficult due to a medical condition or medically inadvisable to obtain the COVID-19 vaccination in order to qualify for the full reward.” (emphasis added)

NOTE: The U.S. Equal Employment Opportunity Commission (EEOC) was not one of the three agencies to join in this announcement.  The EEOC is the agency that enforces the ADA. Watch a pending case before the U.S. Supreme Court that may address adverse impact under the Federal Rehabilitation Act. It may have some implications for how covered employers reasonably accommodate employees with disabilities, such as when they cannot participate in certain wellness programs (including vaccinations) and are not eligible for related incentives.