Three federal agencies have authorized providing employees as part of wellness programs with up to a 30% premium discount if they have been vaccinated for COVID-19. The Congress has funded the federal government and increased the debt limit until early December. COVID-19 employment related cases continue to increase and the EEOC has filed additional lawsuits alleging discrimination against individuals with disabilities.
Congress Funds the Government & Increases the Debt Limit Temporarily – Congress has passed bills funding the government and raising the debt ceiling until December 3, 2021. The agreements averted both a partial government shutdown and a possible default by the federal government on its obligations. Before the December 3rd deadline, Congress needs to enact legislation funding the federal government either for a limited time or the balance of the fiscal year, which ends on September 30, 2022, and either raising or suspending the debt ceiling.
Health Insurance Plans Can Provide Vaccination Premium Discounts – On October 4th, the Departments of Labor, Health and Human Services, and Treasury issued guidance in the form of frequently asked questions that allow health insurance plans as part of wellness programs to provide incentives to those who get COVID-19 vaccinations. Previous regulations provided for two types of wellness programs – participatory and health-contingent. The health contingent programs are divided into activity-only and health outcomes. The guidance provides that vaccine incentives would be part of health-contingent, activity-only wellness programs and incentives cannot exceed 30% of the total cost of medical plan coverage.
The guidance from the three agencies provides that incentives for getting a COVID-19 vaccination must comply with the following five criteria for activity-only wellness programs:
The guidance includes an example of a plan that would qualify as an activity-only health contingent wellness program. The example states that a group health plan offers a 25% premium discount off the cost of the employee-only coverage to all participants who receive a COVID-19 vaccination. To help facilitate participants receiving the vaccination, the plan maintains a toll-free hotline to answer questions about COVID-19 vaccinations and offers to assist in scheduling appointments to receive a COVID-19 vaccination. The plan provides the same premium discount to individuals for whom it is unreasonably difficult due to a medical condition or is medically inadvisable to obtain a COVID-19 vaccination provided the individual agrees to comply with the CDC’s mask guidelines for unvaccinated individuals. The plan also provides notice of the availability of this alternative to all participants. Participants may qualify annually for this premium discount. The reward the plan provides in connection with the vaccine incentive program does not exceed 30 percent of the total cost of employee-only coverage and the opportunity to qualify is offered annually. This program is also reasonably designed to promote health and prevent disease, as the program rewards individuals who obtain a COVID-19 vaccination, while the reasonable alternative standard is not overly burdensome, and is also designed to prevent infection with the virus that causes COVID-19.
Over 3,600 COVID Employment Lawsuits Filed – According to the COVID-19 employment litigation tracker established by the law firm of Fisher Phillips, a total of 3,638 employment related COVID lawsuits had been filed through October 4, 2021. The most common allegations raised in these cases concerned remote work and leave conflicts followed by retaliation and whistleblower claims. The most cases have been filed against employers in the following areas: 1) healthcare, 2) retail, 3) manufacturing, 4) government, and 5) education. The states in which the most claims have been filed are California, New Jersey, New York, Florida, and Ohio.
EEOC Files Two COVID Related Disability Lawsuits – The Equal Employment Opportunity Commission (EEOC) filed two lawsuits in US District Courts in Texas claiming that two employers violated the Americans with Disabilities Act (ADA) by discriminating against employees with disabilities.
In EEOC v. U.S. Drug Mart, filed in U.S. District Court for the Western District of Texas, El Paso Division, the EEOC alleged that the pharmacy discriminated against a pharmacy technician with asthma who requested that his employer accommodate him by allowing him to wear a facemask at work to protect him from COVID-19. The employer prohibited wearing masks and the EEOC contended that because he requested this accommodation, the employee was harassed, sent home twice, taunted, and humiliated resulting in his quitting.
In EEOC v. 151 Coffee, LLC, filed in the U.S. District Court for the Northern District of Texas, Fort Worth Division, the EEOC alleged that the employer violated the ADA by denying reasonable accommodation to two baristas with disabilities and terminating their employment. The EEOC stated that the employees were ready and willing to work, but the employer would not allow them to return to work until a vaccine for COVID-19 was developed.
The EEOC is seeking back pay, compensatory and punitive damages, and injunctive relief in both cases. In announcing the litigation, EEOC senior trial attorney Meaghan Kuelbs stated the employers “took actions in response to the COIVD-19 pandemic that had the effect of discriminating against disabled employees in violation of the ADA.”
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.
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