Hoosier Banker 39 < JOHN TANSELLE < DEBRA MASTRIAN < STEPHEN STITLE < MARTHA LEHMAN LARRY TOMLIN > MARK WENZEL > BRANDT HARDY > 201 North Illinois Street, Suite 1400 Capital Center, South Tower • Indianapolis, Indiana 46204-4212 T: 317.464.4100 • F: 317.464.4101 • salawus.com No challenge too great… we’ll get you there. CARRIE HILL > < MADALYN KINSEY The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues. * For employers subject to the Employee Retirement Income Security Act, providing incentives outside of the employer’s group health plan and to employees other than those who elected coverage in the group health plan may be permissible. However, employers should consult with their benefit advisers regarding ERISA disclosures, reporting requirements or other matters that may be implicated given their group health plan, and any employee assistance program or wellness program the employer offers. Furthermore, if an employer provides or pays for the vaccination, the Health Insurance Portability and Accountability Act nondiscrimination rules may be implicated. A wellness program that offers a reward to employees for achieving a health-related standard, including taking a specific health-related action, must comply with HIPAA do not ask for any genetic information (e.g., family medical history). The difference between this and the prior situation is that here the employee will likely be required to disclose protected medical information as part of the pre-vaccination inquiry. The EEOC did not provide any examples or explanation of what would be deemed “coercive.” In general, if the incentive is so high that it is the equivalent of making the vaccine mandatory, that would be problematic. The EEOC did not answer the question of whether an employer must provide a vaccine incentive to employees who do not get a vaccine due to a medical or religious reason. Of course, employers may encourage employees to get a vaccine by other means, such as education on the benefits of being vaccinated based on information from the CDC, information on the logistics of getting the vaccine based on what the state and local health departments have provided, or exempting employees who are fully vaccinated from wearing masks or quarantining if they are in close contact with someone with COVID-19. Employers that are already offering a vaccine program or incentives, or are considering offering them, should review the EEOC’s current guidance and ensure that their program complies with all applicable federal laws, including the ADA, Title VII and the Genetic Information Nondiscrimination Act, as well as any state or local laws.* Proof of vaccination documentation should be kept in an employee’s confidential medical file, and employees should be instructed not to provide any additional medical information. HB nondiscrimination rules. Employees who cannot satisfy the standard due to adverse health status factors must be provided a reasonable alternative method for earning the incentive. Generally, getting a vaccine would be considered a health-related action, and any employees who cannot receive the vaccine due to an adverse health factor must be given another way to earn the incentive (e.g., complete another activity or provide a note from their healthcare provider). To date, there has not been any additional guidance issued exempting a wellness program from the HIPAA nondiscrimination rules and the alternative standard requirement.
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