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Eeoc Regulatory Update

Regulatory Update: Wellness Incentives

June 10, 2021
EEOC withdraws proposed wellness incentive rules.

The Equal Employment Opportunity Commission (EEOC) has withdrawn two proposed new rules that were intended to deal with what type of employee wellness program incentives employers can provide without violating the Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA).

On Jan. 20, the day that Joe Biden was inaugurated as President, the White House issued a memorandum instructing the heads of executive departments and agencies to stop all non-emergency regulatory activity until a review by the new administration could be conducted.

The presidential memo specifically directed federal agencies to withdraw any rules that had not yet been published in the Federal Register and these proposed EEOC rules fell into that category. The EEOC withdrew the proposed rules and removed them from its website.

The proposals originally held that in most cases employers could only offer minimal incentives like a gift card of modest value or a water bottle to employees who participated in a wellness program. Now that the rules have been withdrawn, employers have little guidance on what, if any, incentives they can use to encourage employees to receive a COVID-19 vaccine, according to legal firm Hall Benefits Law.

In the absence of specific EEOC guidance, employers who offer an incentive to employees for receiving a vaccination need to be mindful of providing reasonable accommodations to those employees who cannot receive a vaccine because of existing medical conditions or religious beliefs as required by the ADA and civil rights law.

“Employers may want to offer employees who cannot receive a vaccine another way to earn the incentive, such as attending a COVID-19 safety class,” Hall Benefits Law suggests.

On its website, the EEOC stated that the next steps for each rule are under consideration. While it is likely that the EEOC will eventually issue new guidance on this issue, it is unlikely that new rules will come in time to guide employers since many are in the process or have already established vaccination programs for their employees.

Hall Benefits Law advises that employers who are considering employee incentive programs for receiving the COVID-19 vaccine should make sure to consult with their benefits counsel.

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