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Surcharges for Unvaccinated and the Interaction of HIPAA and the ADA

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The EEOC and the DOL/IRS/HHS have provided helpful guidance for employers who wish to implement a vaccination incentive (or penalty for unvaccinated) for employees in the form of a health contribution surcharge.

The HIPAA regulators have confirmed that, under HIPAA, an employer must, among quite a few other things, offer an employee for whom it is medically inadvisable to receive a vaccine a "reasonable alternative standard" so that such employee can avoid the surcharge.  The employer can require that the employee provide documentation from his or her physician that receiving the vaccine is indeed medically inadvisable.

Separately, the EEOC has stated that that merely requesting proof of COVID-19 vaccination as a condition of employment is not a "disability-related inquiry" under the ADA.  But, if an employer is administering the vaccine directly or through an agent, certain pre-screening questions constitute a disability-related inquiry subject to the ADA, in which case the incentive or penalty cannot be "coercive."  The EEOC has not stated how much, if any, incentive or penalty would or would not be coercive.

Assume an employer implements a surcharge program where neither it nor its agent is administering the vaccine; employees instead can obtain one through public outlets.  The employer requires a note from the employee's physician if obtaining the vaccine would be medically inadvisable. 

Wouldn't the requirement for the doctor's note be a "disability-related inquiry" under the ADA and thus subject the amount of the surcharge to the undefined "coercive" standard?

Thanks for any thoughts!

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