December 5, 2021


Let'S Talk Law

Delta Makes the Unvaccinated Pay

Delta Air Lines has opened a new front in the push by companies to get employees vaccinated against the coronavirus. Yesterday, Delta said that workers who aren’t vaccinated by Nov. 1 will have to pay an additional $200 per month to remain on the airline’s health plan. More companies are considering imposing such fees on the unvaccinated, following the airline’s lead.

The shift from incentives like extra pay or time off to get the shot to financial penalties for choosing not to is a noteworthy change in corporate vaccination initiatives. Companies are taking a tougher stance even if they, like Delta, stop short of mandating that workers get the vaccine or lose their jobs.

Recent hospital stays because of Covid have cost Delta about $50,000 per employee, and every one of those workers was not fully vaccinated, Delta’s C.E.O., Ed Bastian, said in a memo to staff. Like most large employers, Delta insures its work force, meaning it pays health costs directly and hires an insurance company to administer its plans.

An insurance surcharge is technically complicated. Because employers can’t charge people with pre-existing health conditions higher insurance prices, the surcharges on the unvaccinated are structured as part of “wellness” incentive programs, which are permitted under the Affordable Care Act. These programs must be voluntary but can involve rewards or penalties as large as 30 percent of an employee’s health insurance premium.

How to leverage wellness programs to encourage vaccinations has been a preoccupation in boardrooms, with trade groups pushing regulators for clarification of what was allowed. “This is not rocket science, but it is not easy,” said Rob Duston, a lawyer with Saul Ewing Arnstein & Lehr. Employees facing surcharges who don’t want to be vaccinated can simply drop out of the company health plan. (Delta also said that unvaccinated employees would have to wear masks indoors, get a weekly Covid test and forgo payment protections if they missed work because of a Covid infection.)

So why not make vaccination mandatory? Companies are on sound legal footing for imposing vaccine mandates for employees. But “every company has to make its own decision for its culture,” Bastian told CNN. “I think these added voluntary steps, short of mandating a vaccine, are going to get us as close to 100 percent as we can.”

Geography and politics play a part. Companies balancing the risks of losing employees, altering company culture and facing political blowback can arrive at different conclusions, even within the same industry. United Airlines, which is based in Chicago, was an early mover in mandating vaccination, but its rivals like Delta, which is based in Atlanta, and American and Southwest, which are based in Texas, haven’t required vaccines. Gov. Greg Abbott of Texas issued an executive order yesterday banning coronavirus vaccine mandates, and Gov. Brian Kemp of Georgia has told businesses in the state that they don’t have to comply with local mask or vaccine rules.

The Biden administration prepares to approve coronavirus vaccine booster shots. The regulatory go-ahead for an additional dose of the Pfizer-BioNTech and Moderna vaccines would reportedly be recommended six months after the previous dose, The Wall Street Journal reports. Vaccine makers have shown that an additional shot increases antibodies against the Delta variant.

Economic growth in the U.S. appears to be slipping. The White House’s economic team has lowered its informal internal forecasts for this year, renewing efforts by the administration to get two multitrillion-dollar spending bills through Congress as soon as possible. It also makes paying out already approved pandemic aid more urgent: Nearly 90 percent of a $46.5 billion rental aid program for people facing eviction has yet to be distributed.

A new Facebook panel will address election-related issues. Facebook is in the process of recruiting outside experts who will advise the company on political misinformation and how to deal with campaign ads. The fact that the company is likely to recruit and pay the panel itself could raise questions about independence.

South Korea raises interest rates, a rare move for a major central bank. Exports are a major driver of growth for the country, as manufacturers around the world deal with a chip shortage. A jump in inflation, particularly in real estate, and large consumer debts led the bank to act, as most of its developed-economy counterparts are likely to keep rates at rock-bottom levels for much longer.

Google and Microsoft will invest at least $30 billion to bolster U.S. cybersecurity defenses. The pledges came after 20 executives of major tech companies met for a cybersecurity summit yesterday at the White House. The Biden administration estimates a half-million jobs in the field are currently unfilled, a major challenge to countering hacks and ransomware attacks.

Yesterday, the online subscription service OnlyFans reversed its ban on explicit content. The ban, instated less than a week ago, was not well received. Even creators who would meet the new guidelines left the site, and critics said OnlyFans was being unfair to legitimate sex workers.

If OnlyFans weren’t already associated with adult entertainment, it might be seen as even more dependent on it now. So why did the platform, which is profitable and growing rapidly, take the risk of shunning a big part of its business in the first place? Here are some possibilities:

  • It had a banking problem. Tim Stokely, OnlyFans’s chief executive, said banks threatened to stop processing the company’s payments because of its explicit content. But marijuana sellers and gambling sites have worked around banking issues. “It’s an excuse,” Austin Wolf, who founded the site 4MyFans, told The Times. In a statement after its reversal, OnlyFans said it had received “banking partners’ assurances that OnlyFans can support all genres of creators.”

  • It wanted to make a shift away from porn. The platform has been signing up mainstream entertainers, as well as fitness and cooking personalities. And while OnlyFans was last valued at $1 billion, its non-porn competitors have garnered higher valuations despite smaller audiences.

  • A porn-free site might be more appealing to venture capital. Following Wall Street’s lead, venture investors are increasingly drawn to investments that will pay off as well as be seen as socially responsible. OnlyFans had for months been trying to raise money, which would help it expand in all content areas, and a move away from explicit content may have helped open doors. The porn reversal bolsters profits, but could limit the company’s growth potential.

— Brent Crenshaw, a marketing executive from Dallas, on his co-workers’ reaction to his move to Barbados on a yearlong visa. He told The Wall Street Journal he was just as productive as in Texas and even got promoted while working from the Caribbean island.

Cryptocurrency supporters had hoped that the new S.E.C. chair, Gary Gensler, who previously taught a course about blockchain at M.I.T., would make a long-held dream come true: approving a Bitcoin exchange-traded fund in the U.S. Instead, under his watch, the agency has delayed decisions on these long-sought vehicles that would expose a wide range of investors to crypto without having to hold it directly. Gensler has, however, hinted at efforts that may someday pass muster, which is generating a lot of chatter and intrigue in crypto circles.

Regulated Bitcoin futures are viewed favorably by regulators. Gensler has said that applications for E.T.F.s that hold Bitcoin futures traded at the C.M.E., a regulated exchange, are particularly welcome. American crypto entrepreneurs with a high risk tolerance have set up exchanges offshore to trade racier, unregulated crypto derivatives, a sharp contrast to the tame world of C.M.E. futures. But the strict investor protection provided by funds subject to federal securities laws on established, heavily regulated exchanges is, naturally, what appeals to watchdogs like the S.E.C.

This only raises more questions, Todd Kornfeld of the law firm Troutman Pepper told DealBook. Gensler is suggesting added obligations and limitations for Bitcoin E.T.F. applicants under a rule for mutual funds. This hasn’t applied to existing Bitcoin investment vehicles because Bitcoin is considered a commodity, not a security. Some venture that Gensler’s comments hint at a deeper meaning, stoking debate over the existential question about when a crypto token is a stake in a company versus an asset of independent value.

In the meantime, there are workarounds. Until a Bitcoin E.T.F. gets approved — many believe it is only a matter of time — there are alternatives.

  • The Grayscale Bitcoin Trust buys Bitcoin and sells shares that roughly track its price (subject to a $50,000 minimum investment in periodic private placements).

  • Simplify Asset Management launched an E.T.F. investing mostly in the S&P 500, with a dash of Grayscale on the side.

  • A pending E.T.F. application from Volt Equity would offer exposure to Bitcoin via companies holding it in their treasuries. Prominent among those companies is MicroStrategy, a software firm so focused on crypto (it holds $5 billion in Bitcoin on its balance sheet) that it is effectively a Bitcoin E.T.F. itself.


  • The chip maker Western Digital is in advanced talks to merge with a Japanese rival, Kioxia, in a deal valued at more than $20 billion. (WSJ)

  • Britain’s largest chain of gyms, PureGym, could go public as early as this year to help it expand in the Middle East and U.S. (FT)

  • Rand Araskog, 89, who fended off hostile takeovers and sold off some 250 companies as C.E.O. of ITT at a pivotal time in its history, has died. (NYT)


  • Deutsche Bank’s asset management arm is under investigation by the S.E.C. over claims it overstated its sustainable investing efforts. (WSJ)

  • Gary Gensler appointed Barbara Roper, a longtime critic of Wall Street, to a key advisory role at the S.E.C. (WSJ)

  • “Inflation Could Stay High Next Year, and That’s OK” (Times Opinion)

  • Federal agencies are pressing ahead with an expansion of facial recognition abilities, even as concerns around privacy and misuse grow. (WaPo)

  • Robinhood’s practice of giving away free shares to new customers is generating a backlash from companies and regulators. (WSJ)

Best of the rest

  • The “Great Resignation” isn’t letting up. (CNBC)

  • How Roger Federer’s built his billion-dollar brand. (NYT)

  • Dating app data in London shows that millennial workers are returning to offices in the city’s financial district. (Bloomberg)

  • “China’s New Breed of Hackers Blends Espionage and Entrepreneurship” (NYT)

  • Why the baby on Nirvana’s “Nevermind” album cover, who’s now 30, has decided to sue the band. (NYT)

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