By requiring employees to get either vaccinated or tested weekly, the mandate creates another barrier for restaurants navigating the labor shortage and suffering from what’s been called the “Great Resignation.”
The mandate may only be marginally effective in driving up vaccination rates in restaurant workers. According to a Black Box Intelligence report, 59 percent of operators said employees will quit, and 53 percent said it will be harder to find new employees in light of the new mandate. Many unvaccinated workers would rather leave than take the vaccine, according to Lisa Miller, a consumer insights and innovation strategist who has tracked behavior throughout the pandemic.
Part-time workers were significantly more likely to not be vaccinated (37 percent part-time versus 28 percent for full-time employees). These part-time workers were also three times more likely to quit than get vaccinated to keep their job.
The same pushback the airline industry has experienced from workers will take place in restaurants, Harris says, as employees refuse to get vaccinated or tested weekly.
“It's putting a strain on many of the industries that in particular have high turnover already,” Harris says. “Now with the mandate, it unfortunately pushes in the wrong direction in regards to getting more people employed and keeping them employed.”
Because some states have their own OSHA, the exact impact of the rule on businesses will vary by state and region, Harris says. Some states may have the autonomy to bypass the mandate altogether by not enforcing it, and this very well may occur in states like Texas, where Gov. Greg Abbott issued an executive order banning any entity from mandating the COVID-19 vaccine.
Aaron Goldstein, a labor and employment partner at international law firm Dorsey & Whitney, believes Abbott’s executive order won’t hold up. He explains that it was issued under the Texas Disaster Act of 1975, which grants the governor and state and local agencies certain powers to “"reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or man-made catastrophes, riots, or hostile military or paramilitary action."
Goldstein argues that a ban on vaccine mandates doesn’t fit that purpose and that it’s actually contrary to the guideline. "This will probably get challenged as outside the powers granted to the Governor by the Texas Disaster Act of 1975, or preempted by the OSHA rule when it gets released," Goldstein says.
Harris says actual mechanics behind weekly employee testing also has its obstacles. Not only will restaurants have to provide a way for unvaccinated individuals to test, they also have to provide a means to catalogue whether staff are compliant and storing data safely. Many restaurant employers are not prepared at this point in time unless they’ve already identified a third-party partner to help them in the logistics, he notes.
“It's going to be hard for restaurants to execute,” Harris says. “Unless we have enough supply to meet the strategy of testing at home, on that level of frequency, then it will become a barrier for some restaurants.”