Get Vaccinated Or Go Home: Not So Simple For Restaurant Workers

With the rollout of COVID-19 vaccines on the horizon, many employers are considering mandatory worker vaccination policies. There is no bright line rule allowing employers to require all workers to be vaccinated in all circumstances; it depends on the type of job, whether a “direct threat” exists, and whether limited exceptions apply. Restaurants promoting a safe dining and work environment by implementing a mandatory worker vaccine policy must navigate this uncertain process.

Divided Views On Vaccination

Americans are divided in their views on getting a COVID-19 vaccine.

According to the Pew Research Center, 60% of those surveyed ‘intend to get’ the vaccine, with confidence rising in line with continued research and development. But, even as the FDA’s most recent analysis of the Pfizer

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vaccine finds it “safe and effective,” 20% of those surveyed are ‘pretty certain’ they will not get vaccinated.

Restaurants are in the unique situation of employing a diverse workforce spanning all ages, which is essential and is customer-facing, but is not in healthcare. These factors may cause a restaurant to implement mandatory vaccine policies on a workforce that may push back.

The Law On A Mandatory Vaccine Policy For Workers

The short answer is that, once a vaccine is approved as safe and effective, it may be legal for a restaurant to implement a mandatory employee vaccine policy while COVID-19 presents a “direct threat” to the workplace, and as long as employees with legitimate disabilities or religious reasons for refusing a vaccine are accommodated, up to the point of causing an undue hardship.

This legal framework for a mandatory vaccine policy originates from federal guidance on the 2009 H1N1 “swine flu” pandemic. Then, employers were faced with whether to require that employees get flu shots.

“Direct Threat”

The general rule is that businesses are prohibited from making disability-related inquiries or requiring medical examinations of employees, unless an employee poses “a direct threat due to a medical condition.”

A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This standard is used to permit mandatory flu vaccines for employees in healthcare who provide patient care.

In March 2020, the EEOC updated its 2009 Pandemic Preparedness in the Workplace guidance for the COVID-19 pandemic.

The EEOC’s updated guidance states that the COVID-19 pandemic “meets the direct threat standard.” But, it cautions that “the spread and severity of COVID-19…could affect whether a direct threat still exists” and pointed out that “there is no vaccine available for COVID-19.”

The takeaway is that as the population becomes vaccinated, the “direct threat” to the workplace decreases. If an unvaccinated worker no longer presents a “direct threat” to a workplace, a business cannot mandate a vaccine.

Businesses with mandatory vaccine policies thus must continually assess whether they meet the “direct threat” standard. The assessment is more clear cut in a healthcare setting (where employees may face high-risk patients) versus a restaurant.

Even if there is a direct threat, there are two exceptions allowing employees to refuse a vaccine.

Vaccine Exceptions Based On Disability Or Religious Beliefs

The EEOC guidance from 2009 carves out two scenarios in which a business cannot force an employee to get a vaccine before returning to work:

• “An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents them from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense).”
• “Under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.”

While the updated guidance answers the “direct threat” question (for now), the EEOC punted on the COVID-19 vaccine question. The only update about vaccines is to point out the obvious that “as of [March 2020], there is no vaccine available for COVID-19.”

The EEOC may update its 2009 vaccine-specific guidance as COVID-19 vaccine approval approaches. In all likelihood, it will confirm the 2009 guidance still applies.

Crafting An Employee Vaccine Policy

Restaurants seeking to avoid the legal risk and controversy of mandating vaccines may opt for a voluntary policy that incentivizes employees to get vaccinated. Workers may be offered better shifts or higher pay if they are vaccinated.

Restaurants that opt for a mandatory vaccine policy should design it to avoid even the appearance of discrimination by tying it to job duties and the “direct threat” posed. They also must pay for the costs of the vaccine.

Inevitably, some workers will refuse and seek accommodations, and accommodating isn’t easy for restaurants. It entails an interactive process that is individualized to the worker’s disability (or religious belief) and job duties.

Accommodation examples may be adjusting job duties to limit interaction with others (to prevent infection and spread) or extended leave until the pandemic is no longer a “direct threat.”

Bottom line: restaurants must tread lightly if they plan to mandate vaccines.