Article contributed by Brian D. Polivy, Ellenoff Grossman & Schole LLP
After months of unprecedented turmoil and uncertainty in the hospitality industry, Governor Cuomo announced on February 3, 2021 that municipalities were permitted to make their local restaurant employees eligible to receive the COVID-19 vaccination. Shortly thereafter, Mayor DeBlasio designated restaurant employees eligible for the vaccine and reintroduced indoor dining in New York City.
In response to this welcome news, New York restaurants have begun to consider whether to implement mandatory vaccination policies for their employees. If they choose to adopt such a policy, restaurants should familiarize themselves with the recent guidance issued by the Equal Employment Opportunity Commission (“EEOC”) in order to minimize related legal liability. The safest route, however, may be to encourage, but not require vaccinations. The most significant aspects of the EEOC’s vaccine guidance are summarized below, together with additional considerations for employers in the hospitality industry, specifically.
Disability Accommodation Considerations
The EEOC’s guidance provides that employers, including restaurants, may implement mandatory vaccination policies but must accommodate employees who are unable to be vaccinated due to a disability or medical condition. If presented with this situation, the EEOC suggests that employers first determine whether the unvaccinated employee “would pose a direct threat [to the workplace] due to 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.’”
In evaluating whether the employee poses a direct threat, the restaurant must conduct an individualized case-by-case assessment of the circumstances. If a restaurant determines that the employee would pose a “direct threat” of exposing others in the workplace to the virus, and the restaurant is unable to provide a reasonable accommodation, (e.g., such as permitting an employee to work remotely, or in an area of the establishment that permits social distancing, or taking legally mandated leave), the EEOC suggests that the employer may be able to legally exclude the employee from the workplace (though it does not mean that an employer may legally terminate the employee). However, restaurants should anticipate that excluding employees from the workplace may generate discrimination or
retaliation claims.
Religious Exceptions
If an employee opposes vaccination due to a sincerely held religious belief, practice, or observance prevents, the restaurant must provide a reasonable accommodation unless the accommodation would cause an undue hardship. “Undue hardship” is defined under the EEOC’s guidance as an accommodation that has “more than a de minimis cost or burden on the employer.”
The EEOC provides that “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the restaurant should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Similar to the EEOC’s guidance concerning employees with disabilities, employers may exclude from the workplace unvaccinated employees with sincerely held religious beliefs where an accommodation would cause undue hardship on the employer.
Wage and Hour Considerations
Restaurants implementing mandatory vaccination policies should anticipate that time spent at the vaccination site will be considered compensable time. This could present an added expense for restaurants that are already facing grave economic challenges during the pandemic.
In addition, if an employee is scheduled to receive an employer-mandated vaccine on a day that he or she is scheduled to work, and, as a result, the employee begins and ends the work day over a period exceeding ten hours, “spread of hours” concerns may arise. Spread of hours is governed in New York by the Hospitality Wage Order. For example, if the time spent at the vaccination site is considered part of the employee’s work day, he or she may be entitled to one hour’s pay at the minimum wage for a “spread of hours” violation if the start and end of their work day exceeds ten hours.
Conclusion
While individual circumstances and risk tolerance will inform whether an employer should implement a mandatory vaccination policy, for the reasons set forth above, the most risk-averse approach for employers at this time is to encourage, but not mandate, employee vaccinations. Restaurants implementing a policy that encourages, but does not mandate the vaccination, may be tempted to offer cash bonuses or additional paid time off to encourage employees to get vaccinated. While restaurants may compensate employees for the time it takes to get vaccinated, even on a day off, restaurants are limited in what they may offer as incentives. The EEOC has advised that incentives may only be small items such as a water bottle or a sticker.
In addition to the considerations set forth above, there are numerous potential issues that may arise from mandatory vaccination policies. For example, a waitress at a Brooklyn eatery was recently terminated for refusing vaccination due to her belief that the vaccine would cause infertility. Mandatory vaccination policies may lead to similar, as-yet-unknown claims. Notably, state and local governments may pass additional legislation that could alter the analysis. Consequently, restaurants should consult with counsel concerning the latest guidance to determine the most effective and appropriate policy for their
business.
Brian D. Polivy is an Associate in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City. Mr. Polivy represents and advises businesses across all industries in a variety of labor and employment matters, including proper pay practice, employee classification, disability accommodation, employee discipline, and termination. Mr. Polivy also has extensive experience representing employers with unionized workforces. He also defends employers against discrimination and retaliation claims brought by employees in federal and state court, and before administrative agencies, such as the EEOC and the New York State Division of Human Rights. Brian D. Polivy can be reached at bpolivy@egsllp.com or via phone at 212-370-1300.
