Many employers implementing vaccination programs for their employees have needed to consider whether those programs should be treated as employee wellness programs.

Wellness programs, particularly those programs that offer incentives for participation, may be subject to nondiscrimination requirements. Concern about these nondiscrimination requirements rose in the final days of the Trump administration, when the U.S. Equal Employment Opportunity Commission (EEOC) released proposed nondiscrimination regulations for wellness plans under the Americans with Disabilities Act (ACA).

The proposed rule generally required incentives to have 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 followed up on that freeze by withdrawing the proposed regulations and removing them from its website. As a result, many vaccination programs will come and go before new EEOC wellness program nondiscrimination requirements take effect.

Although certain nondiscrimination requirements still apply to certain wellness programs, the particularly limiting constraints in the now withdrawn EEOC guidance will not present issues for the vaccination programs that have been or will soon be implemented.