For weeks, big employers like Citigroup, Google and the Walt Disney Company have been warming to the idea of requiring coronavirus vaccines for employees. Now that one vaccine has received full federal approval, President Biden wants more to follow suit.
Delta Air Lines has chosen a very different tack — one that might seem to provide employees more choice but could be much harder to carry out. The company on Wednesday became the first large U.S. employer to embrace an idea that has been widely discussed but is mired in legal uncertainty: charging unvaccinated employees more for health insurance.
Starting Nov. 1, Delta employees who have not received the vaccine will have to pay an additional $200 per month to remain on the company’s health plan. It is part of a series of requirements that unvaccinated workers will face in the months to come, the airline’s chief executive, Ed Bastian, said in a memo to staff.
“We’ve always known that vaccinations are the most effective tool to keep our people safe and healthy in the face of this global health crisis,” he said. “That’s why we’re taking additional, robust actions to increase our vaccination rate.”
Every Delta employee who has been hospitalized because of the coronavirus in recent weeks was not yet fully vaccinated, with hospital stays costing the company an average of about $50,000. Like most large employers, Delta insures its own work force, meaning it pays health costs directly and hires an insurance company to administer its plans.
Corporate executives have wrestled with how to restore some normalcy to their operations, including by letting workers return to offices. They are trying to achieve several goals that can at times come into conflict: keeping employees safe, retaining staff opposed to vaccines at a time of tremendous turnover, and showing customers that they are taking the pandemic seriously while not alienating others put off by masks and other restrictions.
Several companies, particularly those in health care, have made vaccination a condition of employment. Under a recent Biden administration policy, any nursing home that receives federal funds will be required to mandate vaccines for workers.
Nearly 14 percent of U.S. employers now require, or plan to require, staff to be vaccinated in order to work at a company site, according to a survey this month from Mercer, a benefits consulting firm. In a May survey, just 3 percent of employers planned to require vaccinations.
Insurance surcharges may appeal to companies that are seeking a less coercive means to increase vaccination rates, said Wade Symons, a partner at Mercer. He has had conversations with about 50 large companies that are considering imposing such fees, he added.
“They still want to have the appearance of a choice,” Mr. Symons said.
The businesses, he said, tend to be in industries that involve a lot of in-person work: manufacturing, hospitality, financial services, retail and transportation. Many have already tried incentives like cash bonuses or raffles for large prizes but still have vaccine holdouts.
Delta said 75 percent of its staff and more than 80 percent of its pilots and flight attendants were vaccinated. But when CNN asked Mr. Bastian on Wednesday why the airline hadn’t simply mandated vaccines, he framed the issue as one of corporate culture.
“Every company has to make its own decision for its culture, its people, what works according to its values,” he said. “I think these added voluntary steps, short of mandating a vaccine, are going to get us as close to 100 percent as we can.”
Legally speaking, insurance surcharges are more complicated than simple employment mandates, which are widely considered legally sound. Federal law bars employers and insurers from charging higher prices to people with pre-existing health conditions. But the vaccine surcharges are being structured as employer “wellness” incentive programs, which are permitted under the Affordable Care Act. Such programs must be voluntary but can involve rewards or penalties as large as 30 percent of an employee’s health insurance premium.
(Insurance plans bought on the marketplaces created by the Affordable Care Act and government programs like Medicaid and Medicare are forbidden to impose such surcharges.)
Under federal law, employers must provide accommodations for workers who cannot receive a vaccine for health reasons or sincerely held religious beliefs. A recent lawsuit successfully challenged wellness programs with large financial penalties, arguing that the provision violated the Americans With Disabilities Act.
“This is not rocket science, but it is not easy,” said Rob Duston, a lawyer with Saul Ewing Arnstein & Lehr in Washington, D.C., whose focus includes employment and disability issues.
“You are dealing with the overlap of at least three different laws,” he added, referring to the Employee Retirement Income Security Act, the Affordable Care Act, and the Equal Employment Opportunity Commission’s wellness plan and Covid-19 guidelines. The companies will have to abide by the Americans With Disabilities Act and health privacy laws, too.
Wellness programs have become widespread in large corporations even though studies show that they have very little impact on employee health. In some cases, they have tended to nudge workers who are facing penalties to drop their workplace coverage.
“It seems like a more complicated way to do it,” said Karen Pollitz, a senior fellow at the Kaiser Family Foundation, who has studied such plans extensively and recently wrote a paper on vaccine mandate options. “In the middle of a pandemic, you want people to have health insurance. Why are you making it more likely they’re going to drop their health insurance?”
But vaccination may prove different from other health behaviors that employers are seeking to change. Unlike weight loss or smoking cessation, vaccination does not require a long-term behavior change.
Understand Vaccine and Mask Mandates in the U.S.
- Vaccine rules. On Aug. 23, the Food and Drug Administration granted full approval to Pfizer-BioNTech’s coronavirus vaccine for people 16 and up, paving the way for an increase in mandates in both the public and private sectors. Private companies have been increasingly mandating vaccines for employees. Such mandates are legally allowed and have been upheld in court challenges.
- Mask rules. The Centers for Disease Control and Prevention in July recommended that all Americans, regardless of vaccination status, wear masks in indoor public places within areas experiencing outbreaks, a reversal of the guidance it offered in May. See where the C.D.C. guidance would apply, and where states have instituted their own mask policies. The battle over masks has become contentious in some states, with some local leaders defying state bans.
- College and universities. More than 400 colleges and universities are requiring students to be vaccinated against Covid-19. Almost all are in states that voted for President Biden.
- Schools. Both California and New York City have introduced vaccine mandates for education staff. A survey released in August found that many American parents of school-age children are opposed to mandated vaccines for students, but were more supportive of mask mandates for students, teachers and staff members who do not have their shots.
- Hospitals and medical centers. Many hospitals and major health systems are requiring employees to get a Covid-19 vaccine, citing rising caseloads fueled by the Delta variant and stubbornly low vaccination rates in their communities, even within their work force.
- New York City. Proof of vaccination is required of workers and customers for indoor dining, gyms, performances and other indoor situations, although enforcement does not begin until Sept. 13. Teachers and other education workers in the city’s vast school system will need to have at least one vaccine dose by Sept. 27, without the option of weekly testing. City hospital workers must also get a vaccine or be subjected to weekly testing. Similar rules are in place for New York State employees.
- At the federal level. The Pentagon announced that it would seek to make coronavirus vaccinations mandatory for the country’s 1.3 million active-duty troops “no later” than the middle of September. President Biden announced that all civilian federal employees would have to be vaccinated against the coronavirus or submit to regular testing, social distancing, mask requirements and restrictions on most travel.
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