Employment Policies: Wellness Programs in Lieu of Employer Vaccine Mandates

Structuring Compliant Programs Under EEOC, ADA, and GINA

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Wednesday, March 2, 2022

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, February 4, 2022

or call 1-800-926-7926

This CLE course will provide employment counsel with guidance on instituting wellness programs in lieu of potential vaccine mandates due to the current state of uncertainty of enforcement of vaccine policies. The panel will discuss how to create a compliant wellness program that follows EEOC guidance and ADA and Genetic Information Nondiscrimination Act (GINA) requirements and meets the same objectives as COVID-19 vaccination mandates and how OSHA’s new ETS requirements for large employers may affect a wellness program.


In the current environment, employers and employees often disagree on whether COVID-19 vaccination mandates achieve various objectives and requirements. Employers seeking to increase employee vaccinations may explore using their healthcare wellness programs to incentivize vaccinations, but this approach has limitations and introduces other considerations.

There are some drawbacks to implementing a wellness program. Unlike an employer mandate, this type of program only affects individuals covered by the health plan and not the employee population as a whole. Additionally, because such a program would result in a premium differential based on an individual's vaccination status, it would need to satisfy regulatory requirements related to wellness programs as prescribed under the portability rules of the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA). Failure to satisfy these requirements could cause the employer to be subject to excise taxes, reporting penalties, regulatory investigations, and participant lawsuits.

Under current law, wellness programs must satisfy the applicable requirements for an "activity-based" program, i.e., provide eligible individuals an opportunity to avoid the surcharge at least once per year, ensure that the surcharge (when added to all other wellness incentives) does not exceed 30 percent of the cost of coverage (or 50 percent to the extent the additional percentage is in connection with a program designed to prevent or reduce tobacco use), be reasonably designed to promote health or prevent disease, provide that the full reward is available to all similarly situated individuals, and satisfy applicable disclosure requirements.

Wellness programs can also implicate requirements under the ADA and the GINA. Based on EEOC guidance provided in 2021, a wellness program that requires a participant to confirm only their vaccination status would not result in a disability-related inquiry or medical exam that could implicate the ADA or the acquisition of genetic information that could violate GINA. Notably, various laws and requirements could be implicated if the vaccine is administered by the employer or its agent, so employers may want to avoid designing such a program.

In addition to wellness programs, employers must consider compliance obligations under OSHA’s new ETS for large employers that require employers with 100 or more employees to develop and implement a policy requiring that employees either become fully vaccinated or undergo weekly testing and wear a face covering at work. Employment counsel must address whether an employer meets the large employer definition and how they will determine and document each employee’s vaccination status, provide paid time to employees to become vaccinated and reasonable time and paid sick leave to recover from any side effects, remove employees from the workplace who test positive or are diagnosed with COVID-19 and report COVID-19 fatalities and hospitalizations to OSHA.

Listen as our expert panel discusses the risks and benefits of instituting an employee wellness plan instead of a vaccine mandate. The panel will address the compliance requirements with EEOC, HIPAA, ACA, ADA, and GINA, as well as best practices for creating a program that addresses the realities of particular workforces.



  1. Employee wellness programs
  2. EEOC regulations
    1. Program requirements
  3. ADA and GINA compliance
  4. OSHA ETS requirements
  5. Best practices


The panel will address these and other key topics:

  • What is the current EEOC guidance on employee wellness programs?
  • How are the ADA and GINA implicated under employee wellness programs?
  • How should employers address OSHA’s ETS requirements for large employers?
  • What are the best practices for an employee wellness program, and when should it be utilized rather than a vaccine mandate?


Rothman, Jason
Jason A. Rothman

Ogletree, Deakins, Nash, Smoak & Stewart

As a member of the employee benefits practice group, Mr. Rothman advises clients on all areas of employee benefits...  |  Read More

Turner, Viv
Viv H. Turner

Groom Law Group

Ms. Turner advises employer-sponsored welfare plans on employee benefit compliance issues under the Affordable Care...  |  Read More

White, Taylor
Taylor E. White


Mr. White regularly advises employers on requirements and best practices regarding discrimination, harassment, and...  |  Read More

Attend on March 2

Early Discount (through 02/04/22)

Cannot Attend March 2?

Early Discount (through 02/04/22)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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