Chefs and Restaurants

Are You Considering Vaccine Requirements for Your Restaurant?

What’s legal, where is it banned, and what owners should consider as more restaurants require vaccine receipts for guests at the door

About 10 days ago, Lee Jacobs got reports from six restaurant clients who had fully vaccinated workers that had recently fallen ill with COVID-19. “It has gone from once every couple of days to multiple times per day, and then it peaked,” says Jacobs, an attorney with New York hospitality law firm, Helbraun Levey. “I’ve started telling family and friends. Be prepared. Masks are coming back, and I wouldn’t be surprised if they’re going to be indoor limitations again come the fall.” 

It’s a not-so-subtle reminder that restaurants aren’t operating in a post-COVID world. The U.S. vaccination rate currently hovers around 50 percent, and the highly contagious Delta variant made up 80 percent of COVID cases in July, according to the Center for Disease Control.

 

The CDC now recommends that everyone, including those who are vaccinated, “wear a mask indoors in public if you are in an area of substantial or high transmission.” More than half of U.S. counties currently fall under that label, and lots of restaurant teams are donning masks again after a brief hiatus. The CDC has also updated its testing guidelines: now folks who are vaccinated should get tested after exposure, even if they’re not symptomatic. 

In response, a growing number of restaurant owners, concentrated in the Bay Area and New York City but expanding into pockets all over the country, have begun implementing vaccine requirements for guests. Last Monday, the San Francisco Bar Alliance recommended that its 500 member bars check vaccine records at the door, along with IDs. The same night, Patricia Howard and her team at Dame in New York emailed 500 upcoming reservations with details of their new vaccination policy: 

Dame is now a vaccination-only restaurant. We require all guests (dining indoors & outdoors) to show record that they are fully vaccinated. Accepted proof includes: Excelsior Pass, physical vaccination card, or a picture of the physical vaccination card.

Dame requires diners to show their vaccination card, a photo of the card, or a mobile app version, available in some states. Thus far, Howard has only had to cancel three reservations. “Thankfully, nearly all of our guests have been so appreciative and supportive. We’ve received hundreds of emails back, thanking us for the initiative, thanking us for keeping our community safe, saying it makes them even more excited to dine at Dame, and hoping other restaurants follow suit,” says Howard, noting that vast majority of negative feedback has come from outside of New York via social media.

Colombia, S.C., Chef/Owner Aaron Hoskins struck a defiant tone on Twitter after announcing that his pizzeria’s dining room would reopen as reservation-only for vaccinated customers: “My favorite reaction to us going vax-only res is ‘they’re gonna go out of business!’ Like motherfuckers we’ve made it this far doing only takeout. You really think I’m scared of going out of business at this point? It’s been like 18 months of stress and anxiety. I’m dead inside.”

The politics surrounding COVID-19 has led some states, including Alabama, Florida, Montana, and North Dakota, to pass laws making it illegal for private businesses to require proof of vaccination from guests for entry or services. Laws in Texas and Iowa stipulate that private businesses that receive grants or funding from the state cannot ask diners to show vaccination receipts. However, in 44 other states, it’s possible (here’s a state-by-state list of relevant statutes). 

“This can be done, but you need to assess the pain points before you implement the policy,” says Jacobs. “Because this is all new areas of the law, you don’t want to be the test case. All of the risks can be mitigated or possibly avoided through proper planning.”

For any business contemplating vaccine requirements for guests or staff, Jacobs says it’s important to fully document new policies, consider worst-case scenarios, determine how you’ll enforce the rules, and, most importantly, train staff to interface with customers. While restaurants can turn away most guests who aren’t vaccinated, there are exceptions.

Plate interviewed Jacobs last week about what restaurants should plan for as they consider and adopt vaccine requirements. This interview has been edited and condensed. 

Can you require staff to vaccinate? 

As an employer, you can discriminate against your employees for any legal reason. It’s only illegal when we discriminate in violation of law, such as treating people differently because of their age, sex, religion, etc. The Equal Employment Opportunity Commission (EEOC) has said that you can absolutely discriminate on the basis of vaccinations. Now, there are exceptions to this rule. If you require someone to do something and they can’t because of a medical condition, a disability, or a sincerely held religious belief, then you have to offer them a reasonable accommodation. 

The EEOC has said that a reasonable accommodation for someone who can’t be vaccinated is to let them work from home, but how do servers work from home? Perhaps a reasonable accommodation within an already vaccinated workforce could be social distancing, using PPE, and putting up barriers, etc. So if someone has a valid and legitimate purpose for not getting vaccinated, you can’t fire them—you must engage in the interactive process to find a reasonable accommodation that works for the employee and the business. But if someone doesn’t want to get a vaccination because they don’t believe in it, or they’re an anti-vaxxer, you can absolutely take adverse action and even fire them.

What are the legal risks of requiring staff to vaccinate?

Let’s say we are going to mandate that everyone on staff gets vaccinated as of today. On the employment side, if you remained open during the pandemic, when there was no vaccine, you are admitting that it is unsafe to work without the vaccine. You have therefore admitted that when you were making people come to work when there were no vaccines, or not mandating it, that it was unsafe. 

No one has sued over this, yet. The employer’s defense will be that they followed all laws, rules, regulations, and best practices; and that the employee cannot connect how they contracted it directly to the workplace. [There are 30 states that have passed liability shields, preventing employees and guests from suing for COVID exposure.] If you’re in a state without a liability shield, you could be exposed, and if you don’t engage in best practices to protect your employee’s health and safety, you remain even more vulnerable. 

The other major issue plaguing hospitality is that we can’t find enough people to work for us. So if we’re going to mandate vaccinations from our staff, shouldn’t we do it for our customers? Are we saying that customers are more important than staff? Taking it a step further, if we mandate employee vaccines, but not from our customers—even with PPE, masks, barriers, etc.—are we not exposing our employees to conditions we admitted to be unsafe? They can’t interact with unvaccinated co-workers, but they can with customers?

So can restaurants mandate vaccinations for customers?

[In most states] you can fully discriminate against your customers, too. We discriminate all the time: “no shirt, shoes, no service.” It’s only illegal when we discriminate against someone because of a protected characteristic.

If you’re in a state that welcomes vaccine mandates for customers, what are the legal risks?

The risks are hypothetical, because no one has sued over it, yet. But here are some of the risks we run. If a customer says, “I can’t get the vaccine because I’m pregnant.” Are your greeters and hosts prepared to handle that? Because you have to engage in an interactive dialogue with that customer to determine if they have a legitimate disability or medical condition or sincerely held religious belief. We have to afford them a reasonable accommodation. The law says that a reasonable accommodation would be a place in the restaurant, where they will be able to continue to wear their masks and maintain six feet of social distancing. Failure to do that can give rise to violations of the Americans with Disabilities Act, as well as other state and local laws. 

A bit further down that rabbit hole, let’s say we provide a reasonable accommodation for someone who has a medical condition or a sincerely held religious belief, and we have now let them into the restaurant. Another guest has shown us a fake vaccine card and is sitting at the table next to them. Because we’re in the hypothetical world, right, they can prove that they got COVID from the person who lied about it on their card. What level of responsibility do you have to verify someone’s vaccination status? Who’s to say what the liability is? 

Going even deeper, let’s say you’re getting vaccination cards and proof that people need a reasonable accommodation of some kind, because they have a disability, medical condition, or sincerely held religious belief. Now, you have these medical records that contain protected health information, or other confidential information like someone’s social security numbers, birthdate, address, etc. What if something happens to those records? Are we going to be held responsible? Under New York’s health law and privacy laws, yes, in my opinion. 

It sounds like restaurants shouldn’t keep guest's vaccine or other health records on file. Is it smarter to ask guests to show proof of vaccination on every visit?

That’s correct. Anything that can be construed to be a medical record could be problematic. I like apps like New York’s Excelsior Pass a lot, [but not all states have them]. It’s designed for public consumption, whereas vaccination cards and medical records are not. 

What are reasonable accommodations for guests with a medical condition, a disability, or a sincerely held religious belief?

 If someone’s unvaccinated, outdoor seating, social distancing, and masks—the things we were using before vaccines—are reasonable accommodations. You must provide the same level of services to those who are granted a reasonable accommodation. You can also have unvaccinated sections, where unvaccinated people sit together in a separate area, and where you can enforce social distancing and masks, and make sure the staff has PPE. 

I have some clients with small spaces who have a guest vaccination mandate, and if someone calls and says they can’t be vaccinated. The host says, “No problem. We have Tuesday and Thursday available. Those are our unvaccinated nights. We have half capacity, and all of the staff will be masked up in PPE.” There are ways and methods to get around it to keep everyone safe.

Is giving guests the option of showing a negative test a reasonable accommodation?

Yes, it would be a reasonable accommodation, but I worry about the validity of those test results. And again, who’s going to verify that it’s a real test, taken on the right date, etc. 

What about takeout? Is that a reasonable accommodation?

It would make sense, but unfortunately not. We must provide the same level of service to everyone. We’re all in this together, and we are not going to get out of it unless we all do our part. [Diners], get vaccinated, if you can, so we can all go out and enjoy normal life. Until then, if you choose not to get vaccinated, then perhaps for everyone’s health and safety, stick to takeout.

What else should owners consider before implementing a vaccination requirement?

This can be done. But if we just put up a blanket policy, and we don’t think about how we’re going to enforce it, that’s when we get into trouble. When we know what the risks are, we can cut them by orders of magnitude. We know the issues surrounding accommodation for our customers and employees. We know issues about accepting, verifying, and maintaining vaccination records and other confidential documents. Who’s going to be your vaccination police and mask enforcers? Those people need to be trained to understand how to answer questions, how to provide a reasonable accommodation, and how to say to your staff, “Your mask is on the wrong way, I’m going to mark you down, and you have three more strikes. On the fourth one, I’m sorry you have to be fired.” That’s irrespective of your best or worst employees.

If we enforce mandates even handedly and by the law, and knowing ownership can’t be everywhere at all times, then we should be OK. Because the goal here is we want to get everyone healthy and safe. We want to get back to work.

Caroline Hatchett is the senior editor of Plate.