Operators must decide how to enforce the policy and handle those who refuse to follow.
When New York City Mayor Bill de Blasio announced the city would require proof of vaccination against COVID-19 for those dining indoors beginning August 16, it raised questions of whether other cities would make similar regulations.
Then San Francisco did the same, but the rule was even stricter, requiring both vaccine doses. New Orleans, a Southern city fighting off high coronavirus caseloads and hospitalizations, repeated the same message to its residents: vaccination (or a negative COVID test within 72 hours) is necessary to dine inside. Also, the Los Angeles City Council voted to ask city staff to create regulations for a potential vaccine mandate.
Will more major markets follow suit? And if they do, how will restaurants enforce such a rule, give how challenging asking consumers to wear masks has been?
Michael Krueger, a lawyer at Newmeyer Dillion who regularly advises restaurants in the Bay area, predicts most high-density cities will soon adopt the same approach as NYC. The exception would be cities in states with governors actively against virus restrictions, like Florida and Texas.
Even within the markets that already elected to require vaccine cards for indoor dining, the cultures vary incredibly. Take New Orleans and San Francisco for example.
“They both are trying to accomplish the same thing, which isn't necessarily to force a vaccine mandate on the population of the city,” Krueger says. “It's there to give the restaurant owners a way to not be shut down eventually.”
The vaccine requirement is a temporary tool for restaurant owners to safely continue indoor dining and prevent further shutdowns, he says. And because the government is mandating it as an order, restaurants can evade pushback from those who might boycott a store for its specific vaccine policy. Essentially, the government is trying to protect restaurants by taking the responsibility out of their hands.
But will that be enough?
The actual ins-and-outs of enforcing such a rule are tricky. Restaurant employees are trained to check IDs when serving alcohol, but asking for a vaccine card as a requirement for entry may bring about a greater amount of anger in patrons.
According to a recent Datassential poll, compared with new mask wearing requirements, asking customers to show their cards or a vaccine passport will cause just as many guests to order from the restaurant in an off-premises channel (takeout or delivery) instead of dining in. And nearly a third of guests said they would leave in this scenario, and many among the vaccine-skeptical crowd said they likely would not return. Two-thirds of consumers added they were willing to wear masks again if restaurants began to require it, but they were not nearly as open to showing proof of vaccination.
Restaurants and bars often employ bouncers, and the new mandates may create a new role altogether: the vaccine bouncer, Krueger says.
If restaurants in these areas do not want the burden or safety hazard of checking for vaccines, they have a choice to make. One that could potentially change the makeup of dining options.
“You as the restaurant owner are going to have to decide,” Krueger says. “Do you want to have to go through this additional standard to allow indoor dining. Is it worth it? Some restaurants are going to say it's not worth it.”
This could mean more restaurants adopt outdoor dining and delivery-only in the short-term. These decisions will look very different in California, where weather is agreeable year-round, and New York, where the winter season nearly freezes outdoor dining.
Ultimately, there is risk of putting employees in harm’s way in the case of an angry, unvaccinated would-be customer.
As Larry Lynch, the National Restaurant Association’s SVP of science and industry, said previously: "Now, without training, our staff members are expected to check the vaccine status of every customer wanting to eat inside the establishment, Last year when mask mandates across the country were put in place, restaurant workers suffered terrifying backlash when enforcing those rules.”
In terms of logistics, customers will need to show proof in the form of a CDC-issued vaccine card, the “New York state Excelsior Pass,” or the NYC COVID Safe app. Guests can also just display a photo of their vaccination card.
NYC is giving restaurants until September 13 before it starts enforcing the rule, which applies to customers and employees. There are exceptions for children under 12 (those not eligible yet for the vaccine), as well as athletes, contractors, and some performers who don’t live in NYC. It excludes church potlucks, community centers, office buildings, house parties (catered or not) and people walking in to grab pickup or use the bathroom.
Businesses will be fined $1,000 for a first offense, $2,000 for a second, and $5,000 for a third.
Krueger says restaurants need to determine how they will select someone who will impose the new regulation on customers entering the doors. They need to figure out if this will be a traditional host, or if they should specifically hire someone who works in a heightened conflict situation. (This would bring forth the vaccine bouncer).
While Krueger says a majority of diners do not seek confrontation, there are those who will be looking for it with the new rules. He advises restaurants to get as much information about these people coming to the restaurants as possible. It brings back memories of 2020, when the Association’s ServeSafe platform created a Conflict Descalation training module to help restaurants handle angry retorts over masks.
“You have to also ask, why would this person then go to a restaurant, knowing that they don't have the vaccine and refuse to do it?” Krueger says. “It's because they want the altercation.”
To enforce these rules, cities might need to go a step further and support restaurants in a tangible way. Anyone who attempts to dine in without a vaccine should be considered a trespasser, Krueger says. If the police are not backing up the restaurants, it is impossible for the policy to hold weight.
Andrew Rigie, executive director of the NYC Hospitality Alliance, said in a statement this week Big Apple restaurants are going to need some oversight executing the "Key to NYC" rollout.
"We support the City’s efforts to get more New Yorkers vaccinated and we are already helping restaurants across the five boroughs comply with the new requirements," he said. "The City’s outreach needs to target education and training for establishments to implement these policies, as they pose operational and economic challenges for understaffed restaurants, bars, and nightclubs struggling to recover. In return for industry businesses playing an extraordinary role in moving New York City forward with this vaccine requirement, City and State governments must support them and the Federal government must replenish the Restaurant Revitalization Fund.”
Krueger says enforcing mandates isn’t a political situation; it's a criminal one. The alternative is shutting down indoor dining, he adds.
And it could go even further. With his legal background, Krueger says restaurants should be able to sue customers who are noncompliant for intentional interference with business operations. Otherwise, there is no penalty for those who are intentionally refusing to follow the regulation, he notes.
“If the cities who are imposing these mandates want to get serious about this and actually want to have some teeth, they can't just say, 'Restaurants, it's all on you,'” Krueger says. “They have to have the restaurants’ back.”
Without a government force backing restaurants up, or even with one, operators may see an impact on their bottom line if they need to hire bouncers or use a third-party security service. Potentially, in the near future, Krueger believes cities could require restaurants to provide their own security service because of the potential conflict.
Of course, this potential need for more staff comes at an inopportune time for restaurants, which have been fighting a hiring shortage over the last few months. Still, with the vaccine requirement in place, it could make restaurant manager and employee relationships even stronger.
“I think some of the relationships between the restaurant owners and their employees and their staff are going to be a little bit stronger because they've been through so much already,” Krueger says.
Krueger’s advice for restaurants is to reframe from implementing the rule as any type of political statement.
“Absolutely do not make this thing political because the people who are going to fight on either side have already done that,” Krueger says. “You're just a restaurant trying to comply with the rules and regulations that are there. This isn't the frontlines for the restaurant owner to fight.”
Restaurants should be seen as merely following the current regulations in place. The rules will not last forever, the attorney notes.
Krueger says the policies will be an initial fight to implement, but he remains optimistic.
“I'm hopeful in humanity,” he says. “My hope is that common sense prevails here, and we see the good of humanity coming through to say, ‘Hey, we're all in this together.’
