Now is a fine time to call your lawyer. That’s the tl;dr advice Adam Gersh, an attorney who focuses on labor and employment at the law firm Flaster Greenberg in New Jersey, is telling his restaurant clients since President Biden announced that most American workers must get Covid-19 vaccinations or submit to weekly testing.
The September 9 announcement isn't, in itself, an official rule. That will be handled by Occupational Safety and Health Administration (OSHA) through what's called an emergency temporary standard (ETS). The White House was light on further detail, pending OSHA hammering out specifics. The president did say the mandate will apply to companies that have more than 100 workers.
The expansive step — which mirrors a new requirement that all federal workers and health care staff follow the same stringent vaccination rules — is designed to tackle the ongoing pandemic, which in the long run should keep restaurants and their workers solvent and healthy. As we wait for OSHA to release the official ETS guidelines, Gersh says many restaurant operators are anxious and confused. But while the government answers those remaining questions, Gersh says there’s plenty that restaurants can do now to prepare.
The first thing for restaurant owners to know is that OSHA has yet to reveal an ETS release date, so at this point it’s hard to know exactly what to expect and when to expect it. That said, Gersh believes answers should be forthcoming soon.
“I think it’s going to be weeks, not months,” Gersh says. Rather than speculate on a date, Gersh encourages employers to look at what we do know: namely that larger companies must either mandate vaccinations or have employees test weekly.
The pandemic has already walloped restaurants and led to ongoing staffing shortages. So it’s important to use this time before the mandate to avoid further losses, by encouraging and incentivizing employees to get vaccinated, says Gersh.
“You need to be prepared for two main topics: if you fall into the category of businesses that require a mandate, you’re going to need to issue one. Employers can consider incentives to do that,” he adds. “Bonuses, time off, things like that can be used to incentivize employees to get vaccinated now, which will hopefully make it an easier hurdle.”
If your employees would rather wing it sans vax, the next contingency to prepare for is the testing itself, which will take time and money.
“It remains to be seen whether the ETS will alter whether employers will have to pay for testing, pay employees for time getting tested, and/or give employees time off to be tested,” Gersh says. “That is a creature of both federal and state law. Whichever is most strict, you need to comply with. As I have read guidance from the Department of Labor, it’s likely it will take the position that time required for testing is compensable currently, but the ETS may alter this.”
In short, employers should be prepared to be on the hook for time and compensation related to weekly vaccine testing.
Restaurant employers need to also be prepared to handle accommodation requests from employees. The two likely avenues for these, under federal and most state law, are medical exemptions and deeply held religious beliefs. Employers are within their rights to verify both.
“The first question is, is the request for an exemption valid?” says Gersh. “The second question is whether it is reasonable to accommodate. The obligation on the employer isn’t to accommodate every exemption request. It’s to accommodate those that are reasonable.”
That is to say, accommodations will be different depending on an employee’s role. For instance, in a restaurant, the accommodations you can make for, say, a server could differ from those available for a prep cook who might be able to do their job in an empty restaurant before service, when the risk of exposure is minimal.
Best practice, Gersh says: “The employer should start with the assumption that a request for an exemption is a valid request. That's your default.”
A religious exemption gets thornier. Unless they can show undue hardship, the Equal Employment Opportunity Commission holds that employers must accommodate a worker with sincerely held religious beliefs. Employers are within their right to ask questions about those beliefs, but Gersh cautions against calling an employee’s alleged minister or priest to do your own sleuthing. Instead, this is when you reach out to your attorney.
“There are a lot of potential pitfalls,” he says. “So my advice is that because of the potential pitfalls and because these are issues that employers are not necessarily well versed in, I think you need to talk to your employment lawyer.”
The biggest questions restaurant owners are asking, Gersh says, still fall firmly in the unknown. What, for instance, can employers do about workers who refuse to comply with the mandate? And will this entire program be a net harm or a net benefit to business?
“I do expect there to be a number of test cases to challenge this,” Gersh says. “Certain people are upset about this.”
But, he adds, as an employer, you can’t be so worried about disgruntled employees that you risk your business by not complying with OSHA. Gersh also says restaurant owners should consider that the vaccine mandate might help the staffing crisis, especially in an industry where so many workers have worked under the stress of possible infection for almost two years and counting.
“There was concern about instituting a vaccine mandate in a tight labor market because you don't want to lose employees,” Gersh says. “But if everybody is doing it, you're less likely to lose them to a competitor.”
The deadline to comply with OSHA’s ETS has yet to be released, but Gersh believes it will come after the December 8 deadline set for federal contractors. And while that might seem like a healthy window of time, Gersh urges restaurant owners to move quickly to huddle with an employment lawyer to get your business set up to be compliant.
“You have at least three potential sets of overlapping laws: federal, state and local, all of which may apply,” he says. “The ruling in New York City and the ruling in upstate New York may differ, just as the law is in Chicago and the law in L.A. may be different. There are a lot of moving pieces that need to be resolved.”