Employer-Provided COVID Vaccines Part II

• Guidance from the U.S. Equal Opportunity Commission (EEOC) on employer-provided COVID-19 vaccination programs raises issues to consider
• Offering a COVID-19 vaccination program at the workplace could raise the program to the level of an ERISA group health plan
• Trump administration’s proposed rules regarding the incentives employers can provide their employees as part of a wellness plan is rescinded by Biden administration
• States have provisions that exceed federal standards with regard to coverage of the COVID-19 vaccine

Employer-Provided COVID Vaccines Part II

In January, we summarized guidance from the U.S. Equal Opportunity Commission (EEOC) on employer-provided COVID-19 vaccination programs. While that document answers some of employers’ questions, there are other legal pitfalls these programs can fall into. Below is a summary of some of the other issues raised by these programs.

Are You Creating a Group Health Plan?

Many employers may consider offering a COVID-19 vaccination program at the workplace, similar to annual flu shot clinics. However, the operation of such a clinic, which may have to offer multiple shots over several weeks, could raise the program to the level of an ERISA group health plan. An employer that does not want to create an additional plan that has its own reporting, disclosure and fiduciary obligations may wish to limit participation to members of the group health plan.

Are You Offering an Incentive for Vaccination?

In early January of 2021, the Trump administration proposed rules regarding the incentives employers can provide their employees as part of a wellness plan. The guidance proposed parameters that plans could operate within without violating the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). Shortly after the rules were proposed, they were rescinded by the Biden administration. Until new guidance is issued, there is still a significant lack of clarity regarding the ability of an employer to offer an incentive to employees to obtain a vaccination.

If an employer opts to provide incentives for vaccinations or similar wellness related activities they must be cognizant of HIPAA’s wellness program rules as well, as specific guidance also does not exist to exempt vaccination incentives from being lumped in with those requirements.

Do You Know What Your State Requires?

At present, federal law requires insurers and self-insured plans to cover and waive cost-sharing for a COVID-19 vaccine that has been recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC). However, a number of states have provisions that exceed federal standards with regard to coverage of the COVID-19 vaccine.

State Requirements

ME, NV: Requires insurers to waive cost-sharing for vaccine immediately upon availability

AL, GA, NJ, ND, MO, TN, WI: Requests insurers to waive cost-sharing for vaccine immediately upon availability

MI: Department of Insurance and Financial Services brokered a deal with nearly all carriers in the state to waive cost-sharing for FDA-approved vaccines

OR: Department of Insurance and Financial Services brokered a deal with six carriers in the state to waive cost-sharing for available vaccines