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Delta’s Fee on Unvaccinated Workers Navigates Across These Laws

Sept. 2, 2021, 3:49 PM

Employers must juggle many requirements under health and workplace laws if they plan to follow Delta Air Lines Inc. in levying a $200 monthly health premium surcharge on every employee who isn’t vaccinated against Covid-19.

Stopping short of mandating vaccines, Delta’s fee applies to employees in the airline’s health-care plan who haven’t received shots by Nov. 1. Employees who aren’t vaccinated by mid-September also will get tested weekly. So far, the policy appears to be working: The company’s chief legal officer reports “a five-fold increase” in the number of workers getting inoculated after the policy was announced.

Imposing that type of penalty can have implications under laws governing wellness programs and anti-discrimination protections. Companies that base additional employee health-plan costs on Covid-19 vaccination status must consider various rules for wellness programs, and would need a documented accommodation plan for workers who can’t get vaccinated because of religion or health conditions, to avoid legal liability.

Dozens of companies now are contemplating similar surcharges on premiums while others are being more cautious. One big sticking point with the policy: In its complexity, it intersects with provisions in at least six different federal laws.

—Graphic by Jonathan Hurtarte. With assistance from Sara Hansard, Paige Smith, and Robert Iafolla

To contact the reporter on this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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