A plan by Delta Air Lines Inc. to punish unvaccinated workers underscores the dilemma faced by employers who want vaccinated workers without triggering the practical problems associated with outright vaccination or resignation orders, such as:
The Atlanta-based airline announced Wednesday that it would charge a $ 200 monthly surcharge for unvaccinated workers who are part of the company’s health plan. Imposing this type of penalty can impact laws regulating wellness programs and bias protection, legal watchers said.
“Employers are trying to find ways to comply with the law to get their employees vaccinated,” said Margo Wolf O’Donnell, co-chair of Labor and Employment Practice at Benesch Friedlander Coplan & Aronoff LLP. “They take a variety of approaches.”
Vaccination regulations in the workplace are still uncommon but are gathering pace as the delta variant of the coronavirus fuels a recent surge in infections, governments impose vaccination requirements, and the vaccine from Pfizer Inc. and BioNTech SE gain full federal food and drug approval receives.
Delta Air issued a vaccination mandate for new hires in May. The company’s $ 200 surcharge on its self-funded health plan – which was allegedly required to cover the cost of treating Covid-19 – is levied on workers who have not been vaccinated by Nov. 1.
The company also said Wednesday that unvaccinated workers are wearing masks indoors and will have to undergo weekly tests starting Sept. 12, while case numbers are high in the community. These steps are in line with the “soft” mandates that the federal government, along with some cities and states, has imposed on workers.
“Delta is within the plan and legal parameters to implement this change,” the company said in a statement.
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Legal complications
The airline’s bonus plan reflects a proven policy of charging workers who smoke tobacco more for their health plans than workers who do not smoke.
Companies that base additional health insurance costs on employees on Covid-19 vaccination status must consider employee health program rules, said Kirsten Garcia, an attorney at Haynes and Boone LLP, who advises employers on health plans.
Employers need to offer sensible alternatives – something that is achieved through smoking cessation programs in the tobacco context – but it’s not immediately clear how that would work with Covid-19 vaccines, Garcia said. Total bonuses are also capped, which means charging costs for missing vaccinations could force an employer to reclaim bonuses related to other issues, she said.
The Equal Employment Opportunity Commission’s guidelines on incentives – which also cover penalties – imply that collecting a surcharge for health insurance would not violate the Americans with Disabilities Act as long as the employer requires proof of vaccination, according to Sachin Pandya, a job law professor from the University of Connecticut.
This guidance also states that employer action cannot be compulsory, which has led some practitioners to wonder what could cross the line and violate the ADA.
Employers need a documented housing plan for workers who cannot be vaccinated for health reasons to avoid ADA liability, said Jennifer Bennett Shinall, a law professor at Vanderbilt University who focuses on disability and discrimination. Similar precautions might be required for religious objections under Title VII of the Civil Rights Act of 1964, although employers have much more leeway to overcome those concerns compared to health reasons for not vaccinating, she said.
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