What Employers Should Know About COVID-19 Vaccine Voluntary Wellness Incentive Programs


As more and more Americans become eligible for the COVID-19 vaccine, many Employers are wrestling with a number of questions regarding how to most effectively get as many of their personnel vaccinated as possible. We previously looked at the circumstances in which an employer can require employees to be vaccinated for COVID-19, but what if your company would rather incentivize employees to get the vaccine, instead of requiring it?

There are many advantages that will come from having a workforce that is entirely or even mostly vaccinated for COVID-19.  Employees will feel more confident and comfortable coming to the worksite.  Employees knowing that they and the people they interact with at work are vaccinated will ease the transition back to something closer to a pre-pandemic workplace.  Further, a vaccinated workplace is dramatically less likely to suffer a COVID-19 outbreak, which can have catastrophic consequences for an employer.

Employee Wellness Incentive Programs

An employer that wants to encourage employees to get a COVID-19 vaccine without mandating it should consider a vaccination employee wellness program.   Many employers have offered voluntary wellness incentive programs in various forms before, as they are a way for employers to reward employees who undertake efforts to improve their health, which in turn lowers the employer’s medical coverage costs.

Generally speaking, an employee wellness program must be truly “voluntary.”  This means that (1) employees cannot be required to participate in the program; (2) participation in the program cannot have any impact on employee health plan benefits or coverage; (3) employees cannot be coerced or intimidated in any way into participating in the program (i.e. no retaliation for non-participation); and (4) the notice describing the program must be written so that employees can understand it, and understand what medical information is being gathered and the purpose for gathering the information.

Employers most commonly struggle with establishing the appropriate incentive reward that will encourage employees to participate in the wellness program, without making employees feel that in reality, participation is mandatory.  An incentive reward that is too large and enticing may effectively remove the “voluntary” nature of the wellness program.  For this reason, employers should ensure that their offered incentive appropriately reflects the voluntary nature of the wellness program.

What are Some Appropriate Incentives for a COVID-19 Vaccine Voluntary Wellness Program?

Identifying the right level and value of a COVID-19 vaccine incentive is something that many employers are currently struggling with.  Unfortunately, the federal government has yet to provide definitive guidance on this topic.  In January 2021, the EEOC published a set of proposed rules for employer incentive programs relating to the COVID-19 vaccination.  The proposal stated that the incentive should be “de minimis,” which means small or relatively insignificant.  However, the EEOC withdrew the proposed rules, and they never became law.

This left employers wondering what incentives to use.  Until further guidance is issued, it is prudent to remain conservative.  Providing employees with time off to get their shot, along with a small amount of cash or a gift card may be an appropriate incentive: it is something that will encourage employees to participate in the program, but not so much that employees will feel that participation is mandatory.

What About Employees Who Cannot Get the Vaccine Due to a Medical or Religious Exemption?

As any employer familiar with the ADA or Title VII of the Civil Rights Act knows, potential issues of discrimination can arise with the administration of a voluntary wellness program.  Employees may be unable to receive the COVID-19 vaccine due to a medical or religious reason.  To ensure the vaccine wellness program is voluntary and available to all employees, an employer should develop an alternative program that employees with a medical or religious exemption can participate in, in order to get the same wellness program incentive.  For example, an employee who cannot receive the COVID-19 vaccine could be given the opportunity to participate in a training program relating to PPE use, as an alternative means to receive the wellness program incentive.   

Before implementing a COVID-19 vaccination voluntary wellness program, we recommend speaking with an attorney.  The attorneys of Davis Grimm Payne & Marra are experienced with many topics relating to COVID-19’s impact on employers and their personnel, and would be glad to help your company continue to navigate through this pandemic.

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