Bass, Berry & Sims attorney Mary Leigh Pirtle discussed the EEOC’s December 16 guidance for employers requiring COVID-19 vaccinations in an article published by Nation’s Restaurant News and Restaurant Hospitality. While restaurant operators may require the vaccinations in the workplace, there are challenges to consider.
“Restaurant operators should consider their particular situation in determining whether a COVID-19 vaccination should be mandatory, voluntary or a mixture of both,” Mary Leigh said. She further added that employers should weigh virus exposure risk among employees and the general population based on positions coming into frequent contact with customers and physical challenges like ability to effectively promote social distancing.
In addition to physical risk, restaurant operators should consider contractual and regulatory restrictions on a catch-all vaccination mandate. For example, vaccination policies for employees represented by unions may be governed by a collective bargaining agreement or a mandatory subject of bargaining, thus limiting an employer’s discretion.
Likewise, non-union employees with certain medical conditions or sincerely held religious beliefs must be allowed to request an exemption from the vaccine requirement by seeking a reasonable accommodations consistent with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act and any related state and local laws. These accommodations for good faith requests are more challenging for an industry that cannot allow employees to work from home, Mary Leigh added, but they can include an unpaid leave of absence, wearing an N95 mask or transferring the employee to a position that has less customer contact.
Finally, employers must determine whether to actually administer vaccinations or direct employees to seek out vaccines from a third party. Those providing the vaccinations should be careful to avoid pre-screening questions seeking genetic information or disclosure of disabilities to ensure compliance with the ADA or Title II of the Genetic Information Nondiscrimination Act (GINA).
The full article, “EEOC Issues New COVID-19 Guidance, Saying Employers Can Mandate Vaccinations,” was published on December 22 by Restaurant Hospitality and Nation’s Restaurant News and is available online.