Many US restaurants are encouraging employees and patrons to get the COVID-19 vaccine, and providing incentives for those who do. However, legal complications are keeping most restaurant operators from making vaccination mandatory.
Restaurant traffic in the US has been rebounding since the vaccine rollout began.
“Vaccination has probably been the greatest thing that has happened for our industry, both for the people who work for us and for our guests,” restaurateur Danny Meyer told CNBC last month.
The CEO of Shake Shack and Union Square Hospitality Group praised the vaccine for bringing employees and customers back to restaurants, but also noted that the industry is struggling to restore staffing levels to what they were before the pandemic.
There are many reasons why restaurant industry employees are hesitating or deciding not to return to their old jobs. Some left the industry after finding work in other sectors during the pandemic, while others have relocated from the cities where they once lived and worked. For some, the hesitation comes from fear for their own safety — specifically concern about returning to packed dining rooms and bustling kitchens if customers and co-workers aren’t vaccinated.
Some restaurant operators are responding by making vaccines mandatory for their employees, including Scott Weiner, co-founder of Fifty/50 Restaurant Group.
After he announced in late April that all Fifty/50 employees would have to be vaccinated by July 15, applications to work at the group’s 15 Chicago restaurants tripled that weekend, The Counter reported.
“I’ve been hearing for nine months across the industry and within my company that service industry employees don’t feel safe. One thing I can do at this point to make all employees and guests feel safe is require the vaccine,” Weiner said.
Before deciding to mandate vaccines for employees, Weiner consulted with lawyers and staff members and ultimately decided that it was the right move for his company. However, the legal complications of vaccine mandates are preventing many restaurants from doing the same.
“If an employer meets the standard to mandate a vaccine, they must still allow exemptions for disability and sincerely held religious beliefs and if they don’t, they could be liable under the [Americans with Disabilities Act] or Title VII [of the Civil Rights Act],” said Chelsea Smith, a labor and employment attorney at the national law firm Hall Estill.
She added that employers should be cautious about asking why employees didn’t get a vaccine, because “that question could be subject to the ADA and it must be job-related and consistent with business necessity. Additionally, there could also be issues if an employer mandates a vaccine and the employee has an adverse reaction.”
Rather than a mandate, Smith said “encouraging employees to get the vaccine and offering incentives is the best practice.”
The National Restaurant Association also recommends that operators encourage rather than mandate when it comes to employee vaccinations.
“Restaurateurs understand the importance of having vaccinated staff, and making sure their customers understand their staffers are vaccinated,” said Larry Lynch, the association’s senior vice president of certification and operations.
Lynch said the most popular incentive for employees to get vaccinated is paid time off. The American Rescue Plan allows small and mid-size companies to get tax credits to offset the cost of paid leave for employees who need that time to receive or recover from COVID-19 vaccinations.
The recovery portion is especially important for employers to pay attention to if they truly want to encourage employees to get vaccinated. Four hours of paid time off — two for each shot, if an employee is receiving the two-dose vaccines from Pfizer or Moderna — seems to be the industry standard, adopted by restaurant companies including Darden Restaurants and McDonald’s. While this may be enough time for most employees to travel to and from a vaccination site, it doesn’t allow for any recovery time if they are feeling sick after the shot.
Many US adults who have not received a COVID-19 vaccine are concerned about missing work as a result of side effects from the shot, according to a recent poll by the Kaiser Family Foundation, The Washington Post reported.
In fact, having to miss work because they need time to recover after the vaccine is a much more common concern than taking time off to get the shot, with 48% citing the former as a concern compared with just 20% citing the latter.
Offering time off for employees to recover from any side effects of the vaccine could help not just with increasing the overall number of vaccinated people in the US, but also with counteracting the uneven distribution of the vaccine across different demographics.
Black and Latino employees were more likely to report worries about missing work due to vaccine side effects, and these groups were less likely to have gotten a vaccine than white workers, according to the Kaiser Family Foundation poll.
Easing employees’ worries about missing work if they need time to recover from the vaccine could help even the playing field.
Restaurant operators should note that any option for time off they extend to employees who get vaccinated must be an option for all employees, Smith said. “If an employer gives an incentive, they should know that if they have employees who won’t get the vaccine because of a sincerely held religious belief or a disability, then those employees should still be given an opportunity to earn the same incentive.”
This is Part I in a two-part series about how restaurants are encouraging employees and customers to get vaccinated against COVID-19. Part II looks at the incentives restaurants are offering for vaccinated guests and how they are navigating proof-of-vaccination policies.
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- Post-pandemic restaurant success means balancing the new normal with old habits
- SmartSummit: Fighting racism through the food and hospitality industries
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