As employers wrestle with whether to require vaccines for employees or how to encourage employees to get vaccinated voluntarily, many companies are implementing incentive programs that provide gifts, paid time off and even cash payments to employees who get vaccinated. In doing so, employers need to consider whether their vaccine programs should be treated as employee wellness programs. Wellness programs, particularly those that offer incentives for participation, may be subject to nondiscrimination requirements. Concern about these nondiscrimination requirements arose in the final days of the Trump Administration, when the EEOC released proposed nondiscrimination regulations for wellness plans under the Americans with Disabilities Act. Under these proposed regulations, the incentives that could have been offered would generally be limited to no more than de minimis value, on the order of a water bottle or small gift card, but the proposed regulations were caught in the freeze on publication instituted by the Biden Administration and never actually appeared in the Federal Register.
The EEOC has now withdrawn the proposed regulations and removed them from its website. As a result, many vaccination programs will come and go before any new EEOC wellness program nondiscrimination requirements take effect. Although some nondiscrimination requirements still apply to certain wellness programs, the particularly limiting constraints in the withdrawn EEOC guidance will not present issues for the vaccination programs that employers are implementing at this time.