By: Andrew Silverio, Esq.

With a troubling portion of Americans still unwilling to protect themselves and others against COVID-19, many employers are looking at ways to both protect themselves from the expenses associated with COVID-19 infection amongst the unvaccinated and incentivize hesitant workers to get vaccinated by creating financial incentives.

Followers of The Phia Group’s webinars and social media will already be somewhat familiar with common health plan-based approaches.  Most notably, plan sponsors can set up wellness programs to create differentials in health plan contributions based on vaccination status without running afoul of HIPAA requirements.  These are subject to the same wellness program rules we see for programs aimed at things like tobacco cessation – by following these guidelines a plan can create an incentive or disincentive surrounding certain behavior which would otherwise be considered a health factor under HIPAA.

However, New York’s Metropolitan Transit Authority has taken more drastic steps, declaring that it will not be paying an otherwise-available $500,000 death benefit to the families of workers who die of COVID-19 if the workers were unvaccinated.

We would not be surprised to see other large employers and state agencies following suit.  Additionally, many states have modified workers’ compensation rules to allow for coverage of COVID-19 infection and disease acquired in the workplace, and given the widespread availability of vaccines, a similar approach to the MTA’s could be to carve out that new coverage to exclude persons who were able to, but chose not to, receive a COVID-19 vaccine.