Nobody wants this pandemic to end faster than restaurant owners, whose businesses have suffered greatly. To get restaurants up and running, New York State added restaurant workers to the list of people eligible for a vaccine.
Waitress Bonnie Jacobson’s employer, the Red Hook Tavern, made vaccination mandatory. Jacobson refused–citing fertility concerns. The Red Hook Tavern fired her, and declined to comment on Jacobson’s specific case in a story for The New York Times. The owner, Billy Durney, did tell the Times that the business’s policies had been revised to clarify how employees could seek an exemption from getting vaccinated.
Was this termination legal?
The Equal Employment Opportunity Commission (EEOC) said, quite clearly, that you can make the Covid-19 vaccination mandatory for any employees that come into contact with other people. A waitress certainly qualifies. But they also state quite clearly that there are exceptions–most notably, under the Americans With Disabilities Act (ADA) and people citing religious exemptions. In those cases, you need to work with the employee to come to a reasonable accommodation (and for religious purposes, it must not place an undue hardship on the business).
But you also have to follow state and local laws as well. Employment attorney and HR consultant Kate Bischoff points out that New York law protects familial status, which could raise an issue here.
But the bigger issue is how the restaurant approached it. According to the New York Times account, Jacobson let her employer know she had a concern regarding fertility, and they responded by firing her.
Employment attorney Jon Hyman explains:
The failure isn’t necessarily in the decision, it’s how the employer got there. It’s a complete failure of process. Fertility is absolutely protected by Title VII, but the employer has no idea if it’s a legitimate concern or not. It made a snap decision based on information that suggests that the employee could be protected.
In other words, you can’t skip the interactive discussion with your employees. This is not a clear-cut case, and there’s no reason to do an immediate termination. They notified her on the 12th and fired her on the 15th. Even if she had wanted to get the vaccine, it’s unlikely that she could have arranged her first vaccination that quickly.
How should this affect your vaccine policy?
This will probably go to court if the restaurant doesn’t settle. Even if the Red Hook Tavern wins in court, you do not want to follow this path. Right now, it’s far better to encourage vaccination than require it. Even many hospitals are not requiring the vaccine, because it is still under emergency authorization. If your local hospital doesn’t require vaccination for its employees, your business probably shouldn’t either.
Ensure your policy includes the exceptions and that you double-check with a local employment attorney to make sure the policy complies with federal, state, and local laws.
Never, ever terminate someone for vaccine refusal without, at minimum, a conversation where the employee lays out the reasons for refusal. Anything that mentions health, pregnancy, or religion could trigger legal protection. Always seek to find a reasonable solution.
If you cannot find a reasonable solution, consult with your local employment attorney before termination. One phone call can save you thousands of dollars in the future.
Give employees adequate time to comply with your policy. Even though an employee may qualify locally, it can take several weeks to secure an appointment for the vaccine. Make sure that you give them paid time off to get the vaccine.
Most of all, be compassionate. Don’t dismiss someone’s vaccine concerns out of hand. Sometimes, just being heard is all your employee needs.