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Could insurance premium changes come for unvaccinated employees?

December 20, 2021

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SYRACUSE N.Y. — The supermarket chain Kroger is ending pandemic benefits for employees who refuse to get vaccinated.

This means, if an unvaccinated worker catches COVID-19, they will not be given two weeks of paid time off like vaccinated employees.

The company is also adding a $50 monthly charge to unvaccinated salaried employees who are enrolled in the company’s health plan.

These changes are causing some to question if policies like this one could be implemented at other businesses, and if so, what type of legal challenges could it bring.

An attorney with Tully Rinckey, Ryan McCall, says he can see dozens of employees challenging this policy, taking their arguments all the way to the Supreme Court.

“Employers, in an effort to either encourage people to get the vaccine or to encourage their employees to actively participate in plans, what they can do is say ‘if you’re not going to get the vaccine, we’re going to offset some of our own costs by increasing the amount you need to pay us,” said McCall.

McCall says insurance companies can’t make these decisions, but companies can.

McCall adds that “unvaccinated” isn’t a condition that’s protected under the American Disabilities Act, but that doesn’t mean employees won’t try to fight back and some could just decide to quit.

“I do expect there to be numerous challenges to the Supreme Court on this,” said McCall. “I have seen that they have been reluctant to hear this issue, however, I would assume at some point this is most likely going to come to a head.”

When asked if he thinks the case will be a difficult one to sell in court, McCall said, “absolutely.”

Delta Airlines is enforcing a similar policy.

“They’re beginning to offset their own costs for unvaccinated individuals onto that unvaccinated employee,” said McCall.

During the pandemic, The Supreme Court has already heard arguments over religious exemptions related to the vaccine.

McCall says he’s expecting lots of big companies to watch what Kroger’s policy does to their employee vaccination rates and if it ends up doing more harm than good.

Tops and Price Chopper have not responded to CNY Central’s request for comment.

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