This is going to get complicated.
This week, hundreds of hospitals around America began dispensing COVID-19 shots to workers. And Tuesday, just a day after Pfizer-BioNTech’s vaccine began to roll out, the FDA confirmed the safety and effectiveness of another option from Moderna and the National Institutes of Health, with a vote expected Thursday on a potential recommendation, and FDA approval shortly thereafter.
It’s a hopeful turning point businesses have held their breath for since the pandemic’s March arrival, with hospitality and restaurants hit especially hard by a new reality of crowd avoidance. But it does bring up some workplace questions.
Kathy Dudley Helms, a member of labor and employment law firm Ogletree Deakins’ Coronavirus Taskforce and Healthcare Practice Group, says restaurants would be wise to start considering legal issues with vaccination-related policies.
To start, should the COVID-19 vaccine be voluntary, mandatory, or some hybrid of both for restaurant employers?
“That will depend largely on the employer and the particular situation,” she says. “For example, for front-line healthcare workers who care for COVID-19 patients, it certainly makes sense for it to be mandatory for both the protection of the healthcare provider and even the patient. Similarly, others who deal in direct patient care will need to be vaccinated even if they do not work directly with COVID patients. People in the meat-packing industry where there has been substantial community spread and who work closely together would also be likely candidates for mandatory vaccinations. Because meatpacking plants are often unionized, it will be a matter likely required to be negotiated under a collective bargaining agreement.”
But what about the neighbor restaurant or chain?
“Servers come into daily contact with customers about whom they may have little knowledge as to safety precautions those individuals are taking,” Dudley Helms added. “Accordingly, it may protect the restaurant employees if the servers are vaccinated. Furthermore, because indoor dining has been viewed as one of the areas where community spread is likely, knowing that a restaurant’s staff is vaccinated may help individuals to feel more secure and encourage them to dine with the restaurant or even go inside to pick up their food. The more assurance the public and employees can be given, the more likely it is that these businesses, even if slowly, are allowed to again open and hopefully open at a greater capacity.”
Dudley Helms’ point cracks an interesting window into a not-so distant future. Restaurants are counting on pent-up demand to surge once the gates reopen, and many expect COVID-19 vaccines to do the trick. But the timing is hazy, especially at this broad of a scale. So can restaurants use this to their advantage? In other terms, will vaccines, as odd as this sounds, become a marketing tool of sorts? “Our staff is vaccinated.” “Dine with no safety concerns.”
“I would not be surprised is restaurant associations, for example, do not become very active in encouraging restaurant employees to be vaccination and advertise their encouragement,” Dudley Helms said.
“The key is for an employer to determine the basis for whichever approach it takes, to lay it out early [even if it is unknown when its employees might receive the vaccine] and educate employees as to the need and the requirements.”
The next logical dilemma is whether or not a restaurant can make it mandatory (more on this later). Dudley Helms says if an operator decides to do so, they must also decide whether it will allow expectations—generally medical and religious—and what, if any, accommodation can be made for individuals not receiving the vaccination.
“There are a lot of decisions to be made early and then an employer can be poised to go forward as the vaccine becomes available to its population,” she says. “Because many employers do have a variety of type of workers, a hybrid may work in many situations. For example, in the meat-packing industry, someone working on the production line may be required to have the vaccine, while someone in accounting may be allowed to take it or not on a voluntary basis. Again, any employer needs to be able to articulate why it is making the choice that it is.”
Restaurants are no stranger to logistics when it comes to employee care and training. If anything, these past nine-plus months have made worker safety more relevant and present than ever. The COVID-19 vaccine will need a similar approach, with restaurants addressing practical aspects of policy, including distribution of a new vaccine, the administrative burden of implementing a new policy, and the costs associated with vaccinating employees.
“These are like any unanticipated but necessary business costs,” Dudley Helms says. “Some employers have in-house medical people who can administer the vaccine when obtained, others will hire a third party [such as an occupational health department of a hospital] to procure and administer the vaccinations, and others will simply require employees to bring in proof of vaccination. A lot of employers have provided for employees to have flu shots over the past years and the mechanism by which they did this is a good foundation to build upon for the COVID-19 vaccine. There is no need to reinvent the wheel, just to be sure it is the right wheel.”
COVID-19 vaccinations are supposed to be free, but some places are charging a fee to administer them. More likely than not, Dudley Helms says, most employers (including restaurants) will provide it in the upcoming year without any cost to the employee to better ensure the health of its workforce. This is one initiative restaurants can probably agree provides healthy ROI. Even more so, having a vaccination policy is going to be table stakes with recruiting and retention. If you don’t offer that bridge, somebody else will.
“If there are specifics with regard to a company’s healthcare plan to have it properly covered, the employer should be certain to educate its employees on these,” Dudley Helms says.
Dicey situations will arise, of course. Are there incentives, though, an employer can use to maintain employee morale while handling enforcement issues and managing accommodation requests?
“Education and transparency are key to gaining and keeping trust, which in turn helps morale. Educate the workforce on why this is important. Make them part of the solution which extends beyond themselves to their fellow workers, their own families, and people they do not even know,” Dudley Helms says. By keeping the workforce healthy, the company remains able to serve its purpose and the economic stability of the company is aided. Accordingly, jobs in general become more secure [be careful not to promise any one individual his/her job]. This is part of brining this nightmare to an end and they can be part of that.”
A good rule of thought, she adds, is to work through the issues before you need the answers. It’s going to be a one-shot (no pun intended) situation where trust is on the line. “If you do not know whether vaccinations will be mandatory, tell the employees that is an issue that is being studied,” Dudley Helms says. “Be sure that there is a fair and consistent applications to anyone seeking an exemption. Be sure that if employee can be terminated for failing to take the vaccine, that notice of this is given and that it is applied fairly and consistently.”
“You may want to showcase your CEO etc. getting the vaccine, but it appears that it is equally important to showcase your regular line employees as well as they may be more influential on each other,” she adds. “Your front-line supervisors also need to be armed with information as they are most likely the ones to get the questions.”
So, like the widely circulating story of former Presidents Obama, Bush, and Clinton volunteering to take the vaccine, a restaurant’s C-suite might want to consider leading by example with something so critical to people’s well-being and confidence. But you have to tread lightly.
“One thing to remember is that vaccinations are medical procedures and continue to require confidentiality under the Americans with Disabilities Act [even if there is no disability],” Dudley Helms says.
“Regardless of the approach an employer takes, continued hygiene measures including face coverings, social distancing, and hand-washing are going to remain critical for some time. As part of any education effort, it would seem to be wise to continue to emphasize this to employees so that they realize the vaccine does not immediately end this need. It will be important for these measures to continue and that is something on which any employer can educate its employees now.”
So can you actually make COVID-19 vaccines mandatory?
If we look to the past with flu vaccinations, generally, the answer is yes. Restaurants can implement mandatory vaccination programs, subject to limited exemptions. While COVID-19 has rushed this topic to the surface, it’s not new necessarily, as healthcare providers can attest. Some variability exists under federal law and among federal agencies, but for the most part, mandatory programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA), Ogletree Deakins explains.
Under Title VII, “a sincerely held religious belief” is a prerequisite to establishing an entitlement to a religious accommodation. What’s worth keeping in mind, though, is how this gets interpreted jurisdiction by jurisdiction. It can be broader in some places than others.
Yet personal anti-vaccination positions (“I do not believe in them”) typically will not support the legal requirement of establishing a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy.
And even if an employee can establish a sincerely held religious belief, the restaurant can deny an accommodation request if it poses an “undue hardship,” the firm explains. This includes harm to the employer, employees, and third parties. Restaurants can make a compelling case here with crowded kitchens and serving the general public.
In fact, the U.S. Equal Employment Opportunity Commission acknowledged that COVID-19 meets the ADA’s “direct threat standard,” which permits more extensive medical inquiries and controls in the workplace than typically allowed under the ADA. A “direct threat” finding means that having someone with COVID-19 in the workplace poses a “significant risk of substantial harm” to others. Such a finding permits employers to implement medical testing and other screening measures the ADA would usually prohibit. It remains to be seen how the EEOC, which has traditionally been hostile to mandatory vaccination programs, will view a COVID-19 vaccine, Ogletree Deakins says.
Federal courts are split on whether speculative harm is enough to establish “undue hardship,” Ogletree Deakins says, but at least one—the U.S. District Court for the District of Massachusetts, in Robinson v. Children’s Hospital Boston—held that exemptions to a mandatory flu vaccine would have posed an undue hardship because allowing one employee to forgo a mandatory vaccination “could have put the health of vulnerable patients at risk.”
Under the ADA, employees can request accommodation by establishing a covered disability. “In the vaccination context, there is a circuit split regarding whether sensitivity to vaccinations constitutes a covered disability. Under a similar set of facts, the U.S. Courts of Appeals for the Eighth and Third Circuits reached opposite conclusions—the Eighth Circuit held that alleged chemical sensitivities and allergies did not constitute a disability under the ADA, while the Third Circuit held that a history of allergies and anxiety related to the possible side effects of a vaccine qualified as an ADA-covered disability,” the firm says.
Essentially, if an employees’ accommodation is covered by the ADA, it will be more difficult for the restaurant to establish that “undue hardship” standard. A restaurant could have to show special, typically case-specific, circumstances demonstrating undue hardship. However, operators could circumvent the problem by offering an alternative vaccine that does not contain an ingredient that could trigger the employees’ medical condition. Whether or not that will be possible with the two vaccines out there will take some research, and time.
Every year, however, legal firms review the validity of mandatory flu vaccinations. Dudley Helms says this typically unfolds in the context of healthcare organizations, as few other employers have had the same need. Yet these are different times, aren’t they?
Typically, Dudley Helms’ analysis has stuck to a pretty standard formula:
- 1. What is the justification (often it’s employee and patient safety)
- 2. Will there be medical and/or religious exemptions (as noted before)
- 3. And, if so (to No. 2), what is the accommodation (it has generally been wearing a mask all times at work, Dudley Helms points out)
Over the past few years, the EEOC pushed back both on the mandatory nature of requiring the flu vaccine and requiring wearing a mask as an accommodation.
To understand what might happen with COVID-19 vaccinations and if a restaurant can require a mandatory rule, let’s consider flu examples. The true starting point, Dudley Helms says, is determining the company’s justification for making it mandatory. Why is it necessary for the workplace and for whom is it necessary? Does the same justification apply to all employees or only employees in specific areas (back versus front of the house, etc.)?
Employers may next want to determine if a vaccination program is something the company can unilaterally put into place or if there is any vehicle, such as a collective bargaining agreement, that requires bargaining over a mandatory requirement, she says. This is the one main area where courts have curbed an employer’s ability to require unilaterally mandatory vaccinations in the past.
If a restaurant does decide it can support a decision to require a mandatory vaccination, Dudley Helms suggests considering the issue of whether to allow exemptions.
The EEOC’s starting position was employers may not require a blanket vaccination program, without considering employees’ medical conditions and religious beliefs. Employers should also note a number of states have expanded exemptions to include a “philosophical exemption” for those workers who object because of personal, moral, or other beliefs.
“Employers may find it useful to have policies and procedures to address the requests for exemptions and appropriate accommodations,” Dudley Helms says.
One option could be a declination form for those who don’t want to take the vaccine and forms for specific exemptions, as well as a process for individuals considering those requests. Dudley Helms says many declination requests have come under the guise of religious objectors. “Employers may want to be prepared and have a plan prior to employees raising the issues,” she says.
From the flu to COVID-19, Dudley Helms expects legal considerations with mandatory vaccinations to be the same. However, the medical community does not know all the issues that could result from the makeup of the COVID-19 vaccine, she adds. Justified or not, there are concerns with it being rushed and potential side effects. “People who are normally supportive of vaccinations are voicing concerns about a first-round COVID-19 vaccination,” Dudley Helms says.
Simply, there is more urgency, of course, with the COVID-19 option than the flu. But also a lot more wariness.
As a result, employers that mandate coronavirus vaccinations should invest in an even greater education effort to answer employees’ concerns.
Ogletree Deakins’ Bret G. Daniel, James M. Paul, and Jimmy F. Robinson Jr., shared some thoughts on the challenge ahead. Understandably, many restaurants will have the initial impulse to pursue a mandatory vaccination policy so they can get back on their feet. They might want to weigh the potential benefit against significant challenges related to administration and enforcement, however.
According to a November Gallup poll, just 58 percent of Americans said they would get a COVID-19 vaccine, up from a low of 50 percent in September.
So restaurants, already strapped with labor challenges, could be asking an employee to choose between a vaccine and their job. Ogletree Deakins says this could drive wedges and breed resentment, as well as risk legal action.
Only 48 percent of nonwhite adults in the study said they’d be willing to get the vaccine. Given these figures, restaurants might want to consider the potential that certain employees may claim that a vaccine policy disparately impacts them.
Issues they’ll likely bring up:
- Rushed timeline for development
- Safety concerns
- A general distrust of vaccines
- Doubts about the effectiveness
To Dudley Helms’ recommendation, education is going to be critical. Restaurants need to start preparing this language far ahead of widespread distribution. If employees understand the benefits and/or the damage not getting it could do to the restaurant, perhaps some awareness could outweigh other concerns. If not, now might be the time to decide whether it’s worth letting that employee walk or not, or how exemptions will be treated by other staff who did get the vaccine.
Discipline and enforcement
Again, is your restaurant willing to discharge employees who refuse to vaccinate? More importantly, the Ogletree Deakins’ team asks, can an employer replace discharged employees quickly enough to operate seamlessly and effectively? This wasn’t easy pre-COVID-19, when turnover for restaurants ranged in the mid-100s and cyclical hiring seasons made retention a top-tier investment.
If the answer to either of these questions is no, the firm says, then employers might want to consider a policy that strongly encourages vaccinations rather than one that mandates it. Such a policy could include incentives for opting into a vaccination program as opposed to punishment for those who opt-out.
That last point is a key one, and likely will be common place for any industry that employs a heavy dose of hourly and part-time workers.
Ogletree Deakins notes employees may request an accommodation for a sincerely held religious belief or disability that prevents vaccination. Potential accommodations include granting exemptions from the vaccination requirement, providing alternative vaccine agents, like one that does not have ingredients at issue with an employee’s disability or religious objection (to the earlier point), or requiring additional mitigation measures, such as increased social distancing, continued use of face coverings, or reassignment to a different position or area of the workplace. Say a server moves to the back of the house.
Reviewing accommodation requests and engaging in the interactive process is a fact-intensive process, the firm says, for which employers will want to be prepared. Additionally, it could result in the filing of disability and religious discrimination claims, even if done correctly.
Once more, restaurants will need to tighten their approach and track it each step of the way.
This has the potential to get tricky as well. Can restaurants schedule vaccination events at the workplace? Will they be able to verify and document employee vaccinations, thus establishing recordkeeping protocols for employees’ medical information? As outlined above, restaurants would need to document and administer accommodation requests, as well as implement appropriate discipline policies. All things likely not in the pre-COVID-19 playbook.
Employers must also keep employees’ vaccination status and underlying conditions confidential in accordance with the ADA and, if applicable, the HIPAA. These tasks will need close guarding across the administrative board.
If mild symptoms due result from the vaccine, or worse, will the restaurant provide paid time off to recover from vaccine-related symptoms? Serious adverse effects to vaccination, while rare, could also potentially result in workers’ compensation and/or tort claims against companies that mandate vaccinations, the firm says. Employers should start by checking insurance policies to ensure coverage.
So where should restaurants begin?
Here is a list of factors to consider before implementing a vaccine policy, from Ogletree Deakins’ team.
Documenting Business Justifications
Employers can determine and document their business justifications for a mandatory policy and the extent to which it could be limited to high-risk positions or departments, or substituted with a policy that encourages vaccination rather than compels it. In many cases, a properly incentivized voluntary policy can yield comparable participation rates compared to mandatory policies once all required accommodations and exemptions are provided.
Implement New Policies
Employers may want to take this opportunity to develop policies for administration and enforcement, including a process for ensuring confidentiality, reviewing accommodation requests, and administering discipline to employees who refuse to comply. In the alternative, employers may consider incentives to vaccinate, such as monetary bonuses, gift cards, extra paid time off, or other rewards.
Communications and Messaging
Employers may want to consider developing positive employee communications, internal and external messaging, and education plans designed to assuage employee concerns and explain the company’s decision in terms of ensuring the health and safety of its employees. In this regard, employers can take the following actions:
Provide timely information regarding vaccine agents and public health authority recommendations.
Make sure that all supervisors and company spokespersons are properly trained to address questions regarding the company’s chosen vaccination policy. To that end, employers may want to organize a COVID-19 team or contact who is tasked with staying abreast of developments and handling communications within the company and to which all questions may be directed.
Determine how to communicate the company’s vaccination policy to the public, including customers, guests, clients, vendors, patients, etc.
Distribution and Tracking
It may be helpful to stay abreast of options for distribution and tracking, such as information regarding availability, distribution, costs, and onsite vaccination services.
Unionized employers may need to address collective bargaining obligations in advance of a vaccination becoming available and before the company decides or communicates its company-wide vaccination policy.
Employers should review their insurance policies to confirm workers’ compensation coverage in the event of an adverse reaction to the vaccine.