COVID Vaccine Incentives

By Caitlin M. Andersen - Peters, Revnew, Kappenman & Anderson, P.A.

June 4, 2021

A recent Fisher Phillips survey indicated a majority of employers want their employees to get the COVID-19 vaccine.  However, over eighty percent (80%) of employers surveyed are not planning to require their workers to get the vaccine.  As a result, many employers are considering offering incentives to employees to get vaccinated.  On May 28, 2021, the EEOC issued new guidance regarding employer incentives for voluntary COVID-19 vaccinations. In general, employers may offer incentives to employees who voluntarily provide documentation or other confirmation that they have been vaccinated by their own health care provider or from their employer or its agent.
 
However, the EEOC indicated that an incentive to get the vaccine from the employer (or its agent) cannot be so substantial as to be coercive.  The EEOC did not provide any guidance on what is considered substantial enough to be “coercive”.  A substantial incentive may make employees feel they are required to get the vaccine from the employer.  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information to the employer.  The limit on the size of the incentive does not apply to incentives given to employees who voluntarily provide documentation that they received the vaccine from their own health care provider.
 
IRS FAQs Regarding COBRA Premium Assistance
 
The IRS recently released IRS Notice 2021-31 with almost ninety (90) FAQs on COBRA premium assistance offered through the American Rescue Plan Act of 2021.  While the DOL issued Model Notices, and some information about COBRA premium assistance, the IRS FAQs provide additional clarification for employers on how to administer COBRA premium assistance.
 
Eligible Individuals:  IRS Notice 2021-31 provides the following clarifications as to who is eligible for COBRA premium assistance:

•    Individuals eligible for, or enrolled in, Medicare are not eligible for COBRA premium assistance.   
•    Individual are eligible for COBRA premium assistance if they have elected and remained on COBRA continuation coverage for an extended period due to a disability as long as their original qualifying event was a reduction in hours of an involuntary termination.

Definition of “Involuntary Termination”:  Individuals may be eligible for COBRA premium assistance if they are eligible for and elect COBRA (or state) continuation coverage because of a reduction in hours or an involuntary termination from employment.  An involuntary termination of employment means a “severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services.”  IRS Notice 2021-31 provides clarifying information on the following situations:

•    If an employee’s resignation is for “good reason” due to employer action that results in a material negative change in the employment relationship (similar to a constructive discharge) it is considered an involuntary termination.
•    Retirement is generally not considered an involuntary termination of employment.
•    Resignation because of a material change in the geographic location of employment is an involuntary termination.
•    A personal circumstances of the employee unrelated to the employer, such as a health condition of the employee or a family member, or inability to locate daycare, will generally not be considered an involuntary termination.

If you have questions regarding the above or any other employment-related concerns, please contact Caitlin Andersen at (952) 921-4619 or candersen@prkalaw.com, or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.