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Amid spreading Omicron variant, employers in a quandary on vaccine mandates and surcharges

By Jeff Levin-Scherz, MD, MBA | December 20, 2021

With no federal rule on vaccination and a likely surge in Omicron cases, some employers are again considering health insurance surcharges for unvaccinated employees.
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About the series

Dr. Jeff Levin-Scherz provides regular updates on the latest COVID-19 developments with a focus on the implications for employers and guidance on how they can tackle pandemic-related challenges to keep their workplaces safe. Explore the series.

Omicron has caused a new wave of infections in Europe and is spreading quickly in the U.S., likely causing surges even larger than the Delta variant. Each new case infected 3.5 new cases in South Africa, and household contacts were twice as likely to get Omicron compared to the Delta variant in the U.K. Omicron is expected to soon be the major cause of COVID-19 in Denmark and the U.K. Omicron already represented over 73% of COVID-19 cases in the U.S. as of December 18.

This is a special challenge in the U.S., as the variant arrives when we continue to have a high rate of hospitalization from the Delta variant. Hospitals are at capacity in many states in the Northeast and the Midwest, and we are already hearing reports of hospitals canceling non-emergency procedures. Hospitals are also reporting worsening staffing challenges, with demoralized providers resigning, leading to increased personnel shortages and high costs of temporary staffing.

It’s still unclear if Omicron causes less severe illness than the Delta variant, but we will likely know more in the next three to four weeks. The global population has much more immunity now from vaccination and infection, but we need to better understand how well that protection stands up against Omicron.

We’ve seen the first reports of universities and employers requiring booster shots for access to campus and the workplace.

Implications for employers:

  • Business travel is light this time of year, and most holiday parties have already happened. The largest risk to employees is from social gatherings, as opposed to the workplace. Employers should reinforce messaging that employees who feel sick should not come to work. They should test and, if necessary, isolate.
  • Employers can continue to focus on making the workplace safer through improved ventilation/filtration, distancing and indoor masking.
  • There is now enough uncertainty about what January will bring that many employers are delaying returning remote workers to the workplace.
  • While vaccinated employees are much less likely to get severe cases of COVID-19, there are many breakthrough cases, and those can infect others. Vaccinated employees continue to pose much less risk of COVID-19 spread than unvaccinated employees. Booster shots are needed to maintain a high level of protection.
  • Employers should be prepared for another severe community surge in cases because there will be exposures and cases of COVID-19 in the workforces in the coming weeks and months.

Booster shots offer improved protection, mRNA vaccines are recommended in the U.S.

I worry that some will hear that the vaccines provide less protection against Omicron and question if they should get vaccinated at all. The contagiousness of Omicron is a compelling reason to get vaccinated and boosted. Data from South Africa suggests that the protection of mRNA vaccines declines from about 90% to 75% with Omicron. That means there is a 2.5 times greater risk of getting an infection now compared to a month or two ago. It looks like an mRNA booster shot leads to about the same protection against Omicron that the primary series offered against the Delta variant.

There is also compelling data that the risk of myocarditis from the mRNA vaccines (between one and 10 cases per million) is dramatically lower than the risk of myocarditis from COVID-19 (40 per million). The mRNA vaccines are not associated with increased risk of long COVID-19 and have not been associated with deaths.

There is some other good news on the vaccine front. Novavax, which designed its vaccine using engineered nanoparticles, offered 90% protection in a large Phase 3 trial – similar to the protection from the mRNA vaccines. That company has not been able to scale up production rapidly, but having more effective vaccines with different mechanisms can help us better fight future waves of COVID-19. This vaccine will also not require freezing for storage.

Finally, the Advisory Committee on Immunization Practices advised getting the mRNA vaccines (Pfizer and Moderna) rather than the J&J (Janssen) vaccine, due to concerns about a very rare blood clotting complication (four per million) seen with the J&J vaccine and the similar AstraZeneca vaccine that has not been approved in the U.S. Any vaccine is better than being unvaccinated, but there are adequate supplies of the mRNA vaccine in the U.S. for those who still need to be vaccinated or boosted.

Implications for employers:

  • Employers should continue their efforts to increase vaccination rates among their employees.
  • Use Pfizer or Moderna vaccines for onsite vaccination for employees.

Renewed interest in surcharges for unvaccinated employees

The legal battle over vaccine mandates continues, and employers are in a quandary. They know that vaccine mandates are effective at achieving vaccination rates above 95% but there is now no federal rule to preempt state prohibitions against mandates. So companies cannot implement mandates in all of their geographies. Some states even have legislation prohibiting companies from ascertaining employee vaccination status. This will complicate exposure tracing since trackers won’t know which nearby employees are vaccinated and need not quarantine.

Employers want to give a clear signal to their employees to get vaccinated, and they are again looking at health insurance surcharges for unvaccinated employees. They might not be as effective as mandates, but they are allowed.

Insurance surcharges are unlikely to lead to the very high vaccination rates achieved through mandates, in part because they require “reasonable alternative standards” (RAS) for those who do not wish to be vaccinated. The most useful RAS would be weekly or more frequent testing (which could be at the employee’s expense), but tracking this would be a huge administrative burden. Other reasonable alternative standards that don’t create a huge burden, like taking an online course, are not likely to improve workplace safety.

Health insurance surcharges can also increase disparities, as lower wage workers are least likely to be vaccinated.

Implications for employers:

  • Be aware that surcharges for the unvaccinated have no influence on those who have waived insurance.
  • These surcharges must follow the wellness rules under the Health Insurance Portability and Accountability Act, the Affordable Care Act and Equal Employment Opportunity Commission rules.
  • Proactive communication of the surcharge is critical.
  • Implementing a surcharge in the middle of a plan year could require allowing election changes depending on the amount.
  • Employers should continue other efforts to increase vaccination rates, even if they implement this type of surcharge.

New Pfizer antiviral drug very effective at preventing hospitalization

Antiviral drugs could be exceptionally helpful at helping us feel safe over the coming months. There are two drugs that are before the FDA now. The first, Merck’s molnupiravir, was narrowly recommended by an FDA advisory panel last month. It decreased the hospitalization rate in high risk patients by 30%. The second, Pfizer’s paxlovid, decreased hospitalization rate in high risk patients by 89%. Both medications need to be taken within three to five days of getting sick in order to be effective.

This is big news! These are both "small molecules" that are far easier and cheaper to manufacturer than biologic drugs like the monoclonal antibodies, and they are likely to work well for variants, too. These are not reasons to skip vaccination, though. Vaccination gives long-term immunity and helps prevent people from getting and transmitting disease. The federal government has purchased supplies of both drugs, but neither will be available in large enough supplies at first to meet all anticipated need.

Implications for employers:

  • The government has purchased initial supplies of these medicines, but employers can be charged administrative fees for prescriptions.
  • The cost of antiviral therapy in the future is likely to be borne by employer-sponsored health plans. The federal government has paid over $500 per course – although we have no idea what future commercial costs will be.
  • These medications require prompt testing and fast results to be given early in illness.

Much about the Omicron variant remains unclear as we head toward the end of the year and another period of uncertainty. Employers should remain vigilant and cautious until we know more.


Population Health Leader, Health and Benefits, North America

Jeff is an internal medicine physician and has led WTW’s clinical response to COVID-19 and other health-related topics. He has served in leadership roles in provider organizations and a health plan and is an Assistant Professor at Harvard Chan School of Public Health.

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