In mid-February, a New York City restaurant made national headlines when one of its employees claimed she was fired for refusing to receive a Covid-19 vaccine. Bonnie Jacobson, a waitress at Brooklyn’s Red Hook Tavern, told The New York Times that she was in favor of vaccinations but said she wanted more time to learn about the possible implications on fertility. The Red Hook Tavern’s owner, Billy Durney, refused to comment on the specifics of the incident but told The Times it had caused the restaurant to reevaluate and change its employee guidelines with regard to requesting a vaccination exemption.

The dispute was the first high-profile example of what could become the next challenging chapter for America’s hospitality industry in the pandemic era. As eligibility opens and vaccinations become more readily available, bar and restaurant operators may start to question whether similar mandates should be in the cards for their businesses — and how to do so legally, if that is their stance. Further down the line, some may consider whether this is also something they should require from their guests.

In theory, both policies would create a safer environment for guests and bar and restaurant workers alike. But implementing them is fraught with legal challenges and, for some, may call into question the very nature of hospitality.

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The Legality of Vaccine Mandates

Covid-19 vaccines are now available to anyone above the age of 16 in the overwhelming majority of states in America. In March, the Biden administration also issued a federal order directing all “states, Tribes, and territories” to make all adults eligible for the vaccine no later than May 1. One in five Americans are now fully vaccinated. With each passing day, therefore, bar and restaurant owners inch closer to the moment when they must decide if vaccinations are something they want for their employees, or absolutely require.

When vaccines first started rolling out in December, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces workplace anti-discrimination laws, published guidance pertaining to employee vaccine mandates.

The document noted that employers were within their rights to require workers to get vaccinated; but it also explained that employers had to provide “reasonable accommodation” for staff members who cannot comply because of disability or sincerely held religious beliefs.

In other words, if a bar or restaurant has made it their policy that everyone working in a customer-facing role has to be vaccinated, they would need to try to find another position for staff members with legitimate exemptions. If a reasonable accommodation isn’t feasible — whether because no such role exists or could reasonably be maintained — the business owner can, legally, terminate that employee’s contract.

“This does not mean the employer may automatically terminate the worker,” the EEOC notes. “Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

While the legality of vaccination mandates in the workplace is clear cut (if bound in legal jargon) the debate over whether a business should go down this route is more complicated. This very topic is one that Lee Jacobs, a partner at Helbraun Levey, a firm that specializes in legal services for bars, restaurants, and hotels, has been discussing with his clients.

Before sharing his opinion on the matter, Jacobs explains how a business should go about implementing a mandate policy.

The employer must first put the policy in writing, and then give their employees notice of the policy and time to become vaccinated, he says. The vaccine must also be readily available for workers (which is not as much of an issue as it once was), and the business should consider the “reasonable accommodations” that can be made for anyone with exemptions. If they do employ one such individual, the company needs to begin an “interactive dialogue” with that worker, while they assess what — if any — accommodations can be made.

Ultimately, though, Jacobs does not feel like workplace vaccine mandates are the best option for bars and restaurants. “There are many pitfalls, and I would say you need to contact a lawyer to make sure that a policy is implemented appropriately,” he says. “If you don’t, you are opening yourself up to discrimination lawsuits for disability and potentially religious discrimination.”

Another complicated aspect of this policy is the risk of coming into contact with protected medical information. In requiring staff to become vaccinated, employers will at some point need to see proof that employees have received their vaccinations. While the vaccine card would suffice in this scenario, an employee could instead potentially present some other type of medical record. “I could spend hours going over the laws that dictate what you can and cannot do with that medical documentation, and how it needs to be stored and protected,” Jacobs says. “Just avoid that minefield.”

Weighing the myriad pitfalls and difficulties, Jacobs instead advises that operators do everything they can to encourage and enable their employees to get a vaccine. This could include helping schedule appointments; providing paid leave to go and get the vaccine, and for recovery from any side effects; and removing all logistical barriers. “The goal is to get people vaccinated, not to fire people who aren’t vaccinated,” he says. “That’s what we want to accomplish.”

There is, of course, a separate PR consideration that could inform this decision. Even if it is legally within an operator’s rights to do so, Jacobs questions: “Do you want to be the person on the cover of The New York Times that’s fired a pregnant barista?”

Hospitality Support For Vaccinations

Ultimately, this conversation hinges on situations where workers can’t, or possibly don’t want to, receive a vaccine. But many working in the industry report an overall sentiment of support among them and their colleagues.

“People are excited and feel more comfortable and grateful now that they have a vaccine,” says Moshe Schulman, managing partner at New York’s Ruffian and Kindred restaurants. Among industry friends, he adds, it’s become something of a “badge of armor.”

Ricky Moore, the chef and owner of the Saltbox Seafood Joints in Durham, N.C., says everyone he knows is on board with vaccinations — including all of his staff. Meanwhile, Neal Bodenheimer, owner of the CureCo. bar and restaurant group, which has three locations in New Orleans, says everyone on his team has also been eager to receive a vaccination. But if that were to change now that everyone aged over 16 in Louisiana can receive a shot, he says he’d be forced to consider making it a company policy.

“We hold the safety of our guests and each other in our hands,” he says. “There are many ways that we do it, and this is one of them.”

Vaccine Passports

As the nation rattles toward herd immunity at a rate of 3 million vaccinations per day, at some point the focus of this debate may switch from staff to guests, by means of vaccine passports. And in that regard, there is significantly less guidance from the federal government.

In a press conference on April 6, White House press secretary Jen Psaki said, “There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential.” In saying so, she confirmed that the issue will play out at a fragmented state-by-state level.

While it is against the law for businesses to require a vaccine passport in Florida, for example, New York has developed the Excelsior Pass with IBM. Built using blockchain technology for privacy, the smartphone app is required to enter certain large-scale public events. Bars and restaurants in the state could, theoretically, also turn to this or other means of proof for guests wishing to dine at their establishments.

Once again, Jacobs adopts a “just-because-they-can-doesn’t-mean-they-should” stance to this scenario because of the risk of discrimination lawsuits.

If a customer is unable to show proof of vaccination to a restaurant host, and that staff member refuses them entry without asking whether they are exempt because of disability or religious beliefs, the customer could have grounds to sue.

This is not a situation most bars and restaurants want to find themselves in — especially after the events of the last year — Jacobs says, adding, “We may be doing everything correct but [most hospitality businesses] can’t afford the battle.”

On a grander scale, Jacobs questions whether vaccine requirements for guests go against the very nature of hospitality. Some in the industry think that it does.

“As far as vaccine passports go, I really don’t think that’s completely ethical,” says Ivy Mix, co-owner of Brooklyn’s  Leyenda bar. “Whereas, yes, I’d like to know if people are vaccinated or if they have a recent negative test, access for people to get said tests and vaccines is not equal. Discriminating is not conducive to good hospitality.”

Ruffian’s Schulman agrees that asking guests to show a vaccination card feels elitist, especially at this relatively early stage of vaccine rollouts. As for the future, he says, “We’re leaving all options on the table.”

But Schulman and Mix are based in a city where, for the most part, residents have obliged with health and safety restrictions, and policies like face masks have generally not become politicized. This is not true for other parts of the country, and this is where the vaccine passport conversation becomes even more complex.

CureCo.’s Bodenheimer indicates he would be a proponent of vaccine passports, but says this is “100 percent” a question of location. “New Orleans is a blue city surrounded by a sea of red,” he says.

What he’d ultimately prefer are national guidelines and consistent policy on safety standards across counties and states. That way, he and his team could spend less time acting as enforcers, and pour more energy into the true nature of their work. “It would be nice to just focus on hospitality within our walls,” he says.

On so many occasions over the last year, every solution and lifeline seems to have brought with it a new unexpected complication for hospitality businesses. The vaccine and debate over vaccination mandates appear to be the next chapter in that tale — one we can all unite in hoping will end as soon as possible.

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