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Delta Airlines made the news this week by announcing it would require employees who have not received the COVID-19 vaccine to pay $200 more per month for their health care insurance. Even before Delta made this announcement, we were getting the question, “can an employer do this?” The answer is “yes” if the program is structured to comply with wellness program rules under the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA).

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Although we typically think of HIPAA as a privacy law, HIPAA also includes health nondiscrimination rules that generally prohibit an employer from charging employees higher health insurance premiums based on health factors. But under HIPAA regulations and the ACA, an employer can offer financial incentives under its health plan to individuals who participate in its wellness programs. A wellness program can include incentives for getting the COVID-19 vaccine, such as a premium surcharge for those individuals who are unvaccinated. A premium surcharge for unvaccinated individuals will have to comply with the following HIPAA/ACA rules:

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In addition to the HIPAA/ACA wellness program requirements, you should also take into account the following:

If you have questions about COVID-19 incentive programs or need assistance implementing a COVID-19 vaccination incentive program, Warner can help! Please contact Norbert Kugele, Stephanie Grant or any other member of Warner’s Employee Benefits/Executive Compensation Practice Group.

Senior Counsel

Stephanie H. Grant

Employee Benefits

Can an Employer Charge Unvaccinated Employees a Higher Health Plan Premium?

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Can an Employer Charge Unvaccinated Employees a Higher Health Plan Premium?

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