There has been an increase in the number of companies that require or offer incentives for their employees to get the COVID-19 vaccines. Biden’s order to require government contractors and subcontractors to follow COVID safety precautions, including vaccination requirements accelerated this trend. Employees of hospitals and health care facilities that participate in Medicare and Medicaid will be mandated to be vaccinated by the Centers for Health Care Medicare and Medicaid Services (CMS). By the end of November, unless they meet an exemption, all federal employees must be vaccinated. Occupational Safety and Health Administration has sent an emergency regulation to the White House for approval, which would mandate vaccinations or weekly COVID testing for all businesses with more than 100 employees.
Employers who require vaccinations or offer incentives have to navigate a complicated web of regulatory restrictions. To enforce their demands, they are limited in their authority by the ADA and Title VII’s restrictions on disability and religious discrimination. Vaccine incentive programmes are covered by the Affordable Care Act’s (ACA) prohibition on health-status discrimination. Vaccine incentive programmes are covered by the Affordable Care Act’s (ACA) prohibition on health-status discrimination. An employee immunisation programme may violate medical privacy laws such as the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (HIPAA), and the Genetic Information Non-Discrimination Act (GINA). A new set of federal regulations from the Office of Economic Opportunity, the Department of Health and Human Services’ Office of Civil Rights, and the Safer Federal Workforce Program adds some clarity to the confusing web of federal regulations.
Vaccination Requirements and Federal Law
It is permissible and even required by federal law for employers to ensure that their employees receive the COVID-19 vaccination. Regulations like Title VII and the ADA place restrictions on employers’ ability to discriminate in this way. The ADA prohibits employers from requiring employees with disabilities that prevent them from receiving the COVID-19 vaccine to be vaccinated unless the employee poses a “direct threat” to the workplace and no reasonable accommodation can be made. Only a small number of disabilities (like an allergic reaction to the vaccine) would prevent government employees from being immunised, while other medical conditions (like recuperation from certain illnesses) may warrant a delay. Because COVID-19 is contagious, the investigation will likely focus on whether a reasonable accommodation was provided rather than the direct-threat criterion.
As per Title VII, employers are also required to make reasonable accommodations for employees who refuse vaccinations due to religious beliefs, practises or observations that they hold sincerely. There are many ways to make reasonable adjustments like masking, periodic testing, telework, or limiting contact with other employees. “undue hardship” is defined as a “substantial difficulty or expense” for a disability accommodation or greater than a “minimum cost or burden” for a religious accommodation, and employers are not required to provide such accommodations. COVID-19 antibodies, remote work, or compliance with a state law prohibiting mandates (such as those enacted in Texas or Montana) do not exempt federal employees and employees of federal contractors from the vaccine mandate for those who have already received the vaccine.
About 40 lawsuits have been filed in federal court to challenge vaccine mandates imposed by employers or the government. Only a small percentage of these cases have been decided in favour of the plaintiffs. The only victorious examples of government requirements that did not accommodate religious objections were those that were imposed by the government.
Employer Vaccine Incentives
Employees may be encouraged to get vaccinated for themselves or their families by their employers. When employers offer vaccinations, it must be voluntary because screening questions about disability or family medical history before administering the vaccine are prohibited by the Americans with Disabilities Act (ADA) and GINA. It is illegal and involuntary if the employee is effectively compelled to answer these questions because of the high incentives offered. There are exemptions for community-based providers who offer incentives to vaccinate, such as in a pharmacy. By asking about a person’s vaccination status, neither of these rules are broken.
Vaccine Incentives in Relation to the Health Plan
If an employer provides vaccination incentives or surcharges through its own health plan, there are specific rules that must be followed. It is prohibited by the Affordable Care Act (ACA) to deny health benefits based on an individual’s vaccination status. Wellness programmes that meet certain criteria, however, are eligible for incentives. “Activity-based” wellness programmes are those that offer discounts or raise premiums or cost-sharing based on a person’s vaccination status. It must be constructed in a way that ensures that everyone who is in a similar situation receives the full benefit of it. Employee-only health insurance premiums cannot be penalised or rewarded by more than 30 percent of the total amount paid. People who are unable or unwilling to get vaccinated due to medical conditions should be given a waiver or an acceptable alternative, such as following other COVID-19 safety requirements. As a condition of receiving medical coverage, an employer cannot simply require vaccination.
Employers that fail to offer affordable health insurance coverage may be penalised by the Affordable Care Act’s employer mandate if the amount of a premium surcharge would make the coverage unaffordable (defined as costing more than 9.83 percent of household income in 2021).
The Privacy Rule and Vaccine Information
In order to keep medical records safe, the HIPAA privacy rule only applies to “covered entities.” These include health plans, health information clearinghouses, health care providers, and businesses that perform health care services and activities on their behalf. Inquiring about a person’s vaccination status is completely unaffected by this, whether by an employer, school, store, restaurant, or another public venue. People’s responses are unaffected by it, too. The vaccination status of a company can also be inquired about by the general public. Employee vaccination records must be kept private and separate from other employee records in order for employers to comply.
In order for health care providers and other covered entities to release vaccination information, such as to public health agencies or an insurance company to collect a payment, the patient must give their permission or if they are adhering to privacy law exceptions.
In summary, private companies may — and in some cases, must — mandate their employees to receive COVID-19 vaccinations. Employers, however, must be careful of federal laws preventing discrimination, regulating health plans, and preserving employee privacy while enforcing this obligation. Recent guidance from federal agencies clarifies these requirements.