COVID-19 vaccinations are on the minds of restaurant employers looking to return to “normal” in what has been a difficult year for the industry. The potential for vaccinating employees comes with many questions. Adding to the confusion: vaccine eligibility for restaurant employees varies from state to state, and the timing of eligibility remains unknown in most states.
Despite many uncertainties, there are steps that restaurant employers can take now to prepare for vaccination eligibility.
1. When will restaurant employees be eligible for vaccination and what should restaurant employers do to confirm the employment situation?
The answer about eligibility depends on the state. Some states have indicated that restaurant employees are, or will soon be, eligible for vaccination as part of “Phase 1b”. For example, in early February, New York announced that restaurant workers could start getting vaccinated. Colorado also added restaurant workers to group 1b, but divided 1b into subcategories; restaurant workers will soon be eligible for vaccination after those over 65 have already been vaccinated.
Other states (including Delaware, Iowa and Massachusetts) have indicated that restaurant workers may soon qualify. South Carolina and Ohio have indicated that they are reviewing requests to transfer restaurant workers in their vaccination plans. The National Restaurant Association’s ServSafe team tracks each state’s plans: Restaurant industry state vaccine tracker.
However, vaccine availability is a separate issue. In New York, for example, skilled restaurant workers have not necessarily been able to get vaccinated.
States are likely to require employees to provide proof that they are restaurant workers to qualify. However, the type of evidence will depend on the state. Most state vaccination programs leave the vaccination initiation process to workers; which means that, once qualified, the employee can start making an appointment on their own. Some states (such as Connecticut) may require employers to initiate the state’s vaccination eligibility process for eligible workers. Although the logistics remain largely unknown, as with the health sector, restaurants are expected to provide a letter from the company confirming the employee’s employment status. Employers must review the requirements of the applicable jurisdiction and monitor for additional information.
2. Can restaurants demand that their entire workforce be vaccinated?
Under federal labor law, it appears that a COVID-19 vaccination mandate is likely to be allowed for many employees. However, restaurants may need to consider making exceptions, either as reasonable accommodation or because a vaccination order may have an unevenly unlawful impact on employees in certain protected classifications. Compelling (rather than encouraging, recommending or encouraging) vaccinations, therefore, entails several legal and practical considerations. Restaurants must also consider state or local laws more protective, potentially requiring restaurants to vary vaccination policies according to jurisdiction. For more information about mandatory vaccination considerations, see To vaccinate or not to vaccinate … That is the question.
Industry studies suggest that restaurant employees may be reluctant to be first in line for vaccination. Restaurants must consider the impact that a mandatory policy can have on employee relationships, morale and personnel.
Restaurants should consider what type of vaccination policy, if any, they can implement and start preparing for employee eligibility. Many restaurant employees have questions about their employer’s eligibility and vaccination policy. While eligibility can take time, employers can start drafting policies and sending messages to employees right now. If restaurants require vaccines, they must also carefully evaluate any obligations to pay employees for time spent on vaccines.
3. With the exception of mandatory vaccination, what incentives can restaurant employers provide to encourage vaccination, especially since studies suggest that many may choose not to vaccinate when they are eligible?
News abounds about incentives, bonuses or other advantages for employees who choose to be vaccinated. Many in the industry are considering potential incentives. For example, some restaurants consider offering employees an extra payment (ie, four extra hours of pay) to encourage employees to set aside time to get vaccinated. Others may offer additional paid time off in case of any side effects from the vaccine. Gift cards or other minor vaccination incentives may also be an option in the right circumstances for some restaurants. Like other vaccination-related issues, incentives are also replete with legal and practical considerations. Restaurant employers should consider the nature and amount of an incentive and whether the incentive bill triggers the Americans with Disabilities Act (ADA) rules on voluntary welfare programs. Vaccination incentives can be considered part of a wellness program, which is part of the company’s group health plans, and such incentives can involve several state and federal laws. Likewise, requiring proof of vaccination to receive the incentive raises a number of issues of confidentiality, privacy and other legal considerations. Depending on how the incentive is designed, there may be wage and hourly implications, as well as accommodation issues, to be considered.
4. Can restaurant employers ask employees if they have been vaccinated and ask for proof?
Equal Employment Opportunities Commission (EEOC) guidance states that employers can request proof of the COVID-19 vaccination without being involved in a disability-related survey. However, there are practical and legal considerations, including keeping vaccination records as confidential medical records. Before collecting proof of vaccination from employees, restaurants should consider:
- What is the purpose of collecting this data? What do they plan to do with this?
- How will it be collected and maintained?
- Are there adequate privacy and confidentiality protections around collection and storage?
- Any other state or local legal obligations.
5. Can restaurant employers ask candidates if they have been vaccinated or require vaccination for new hires?
Recent EEOC Guidance states that employers can ask candidates if they have been vaccinated without violating the ADA, as long as candidates have received a conditional job offer and the other ADA requirements for post offer medical consultations are followed. Employers have ample latitude with respect to disability issues after a conditional job offer has been made, provided that the same questions are asked of all employees who fall into that category of work. As with employees, however, before restaurants withdraw job offers from candidates who cannot be vaccinated due to a disability or sincere religious belief, they may need to consider whether reasonable accommodation is available and they may need to defend vaccination mandates be work-related and consistent with the needs of the business. If an employer decides to require vaccinations for all employees, it would make sense to extend this mandate to new hires, with the necessary accommodation process in place for both current employees and new hires. A more complicated situation would be if an employer wanted to impose different standards on current employees and new hires, as there would be legal and practical issues that should be considered.
6. Can restaurants disclose to customers that their employees have been vaccinated? What can a restaurant say publicly about vaccinating employees as advertising?
Many in the restaurant industry believe that customers can feel more comfortable knowing that workers have been vaccinated. Due to possible issues of confidentiality and privacy, discussing the situation of individual workers can be problematic. Instead, restaurants can consider general notification to guests about the restaurant’s COVID-19 cleaning and safety protocols and include general information about the measures being taken to encourage staff vaccinations, on their website or at the restaurant. If appropriate incentives are offered, restaurants can share this information, so that guests know that the restaurant is actively encouraging vaccination.
Stay tuned and expect changes in this area for the restaurant industry. We will continue to provide updates. Employers considering a vaccination program should consult with a lawyer to ensure that they address problems effectively and comply with applicable law.