20 December 2020
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Hotel Lawyer: What stance should hotels take on mandatory COVID-19 vaccinations?
Most of the world has been anxiously waiting for the “silver bullet” of an effective COVID-19 anti-virus vaccine to save lives, reopen business, save severely damaged hotels and restaurants, and restore public confidence. The FDA approval of the first two US vaccines and the massive distribution immediately thereafter is projected to provide sufficient doses of the vaccine for about half the US population by March 2021 and 100% of the population by the Summer of 2021.
But almost before the anti-virus vaccine distribution started, a significant faction of anti-vaxxers started challenging the effectiveness and desirability of taking the vaccine. Many such advocates said they do not want to take the vaccine, or at least want to wait. Some raised questions about the vaccine’s effectiveness and side effects. Issues of allergic reaction and religious conviction (against the vaccine) were raised. “Social control” issues started to shape the debate and the controversy. It is ironic that so many are fighting for priority to get the vaccine first while others fight attempts to force vaccination.
So, what should hotels do to protect their employees and guests? Can – or should – hotel employers mandate vaccination for their public-facing workforce? What are the important legal and business considerations in charting the right course?
My partner Travis Gemoets regularly advises the hospitality industry on a wide range of labor and employment legal issues. He has decades of expertise negotiating with labor unions, guiding businesses on closings, reopenings, and dealing with regulatory issues, and defending class actions. Below is his latest update on the important issue of mandatory vaccination.
Can or should hotels mandate vaccination against the COVID-19 coronavirus?
(Can hoteliers force employees to take the vaccine against the coronavirus?)
by
Travis M. Gemoets, Partner & Senior Member of
JMBM’s Global Hospitality Group®
The coronavirus pandemic has wreaked havoc on our nation, claiming more than 300,000 lives and decimating important sectors of our economy, most notably hotels, restaurants, and other segments of the hospitality industry. The FDA’s approval of the Pfizer and Moderna vaccines in December 2020 cleared a major, nationwide distribution of vaccines with a 94-95% effectiveness in the US. It may be the salvation of the hospitality industry and the US economy.
Of course, the first priorities for the vaccines are for front-line healthcare professionals and certain high-risk individuals. By early spring, doses for all “essential workers” will be available and by the summer of 2021, we expect that there will be enough for the entire population of the US.
Can an employer require employees to be vaccinated?
As the coronavirus vaccine doses become increasingly available, employers will have to decide whether or not they should mandate that their employees get the vaccine. For many employees, will it be a choice or a requirement? Are employers legally permitted to insist that employees to get the coronavirus vaccine?
As a very general rule, yes, an employer may impose a vaccination mandate for its employees. But there are two major exceptions to this vaccination requirement: an employee’s religious belief, or an employee’s medical condition that makes it unreasonable for the employee to get vaccinated.
The Religious Exemption
The right to refuse a workplace vaccination based on religious grounds comes primarily from Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects employees from discrimination on a variety of characteristics, including religion, and applies to private employers with 15 or more employees, as well as local, state, and federal governments.
To be exempt, the employee must prove (1) they have a sincerely held religious belief, and (2) not getting vaccinated does not impose an undue hardship on the employer. To receive protection under Title VII, the belief must be religious and it must be sincerely held. The U.S. Equal Employment Opportunity Commission (EEOC) interprets the concept of religious belief in an expansive manner. It can include moral and non-theistic ethical beliefs as to what is right and wrong. It does not have to be rooted in the beliefs of a traditional or common organized religion. And a religious belief does not need to be widely held. However, it does not include personal or political beliefs.
But the second prong of the test is equally important. Even if the employee has a sincerely held religious belief, the employer does not have to allow for the vaccine exemption if providing this accommodation would constitute an undue hardship on the employer which imposes more than a minimal burden on the employer. If a requested accommodation jeopardizes the health or safety of others, it will likely constitute an undue burden. Likewise, if the accommodation would result in staffing shortages, it does not need to be granted. Concern for the health and safety of other workers, customers, and anyone else in the workplace, grounded in fact and the nature of the employee’s work, should qualify. If the employee is able to work 100% remotely, a coronavirus vaccine refusal would probably not result in an undue burden on the employer. A fact-specific analysis is required, based upon the interaction the employee is required or expected to have with others.
The Medical Exemption
The Americans with Disabilities Act of 1990 (ADA) can exempt an employee from a vaccination mandate. However, for the ADA to provide this exemption, the employee needs to show that they have an ADA-recognized disability that prevents them from taking the coronavirus vaccine, and that this vaccination exemption does not impose an undue hardship on the employer. Assuming the employee seeking the coronavirus vaccine exemption has a disability that’s covered by the ADA, they can only refuse the coronavirus vaccine if the refusal does not impose an undue hardship on the employer. An accommodation poses undue hardship if the employer has to incur substantial expense or difficulty to provide the accommodation. This is a very fact-specific analysis and depends on the characteristics of the job, the employer’s business, and the employer’s resources. This means that what might be reasonable for a major corporation would not be reasonable for a small business.
The EEOC has declared the coronavirus a “direct threat” which means there is “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.” As long as this designation remains in place, it gives employers greater ability to mandate that employees be vaccinated against the coronavirus. Theoretically, this should make it easier for employers to force employees to get the coronavirus vaccine. However, how the direct threat designation works when applied to a coronavirus vaccination mandate is still not clear.
What are the risks?
What if the employer mandates that an employee take the vaccine, but the employee suffers side effects as a result? Some can be quite severe, according to early reports. In that case, a workers’ compensation claim would likely follow. What about public backlash or resistance? People have fought against mask mandates, and a vaccine is far more invasive and could possibly even cause harm. These factors should be considered when the employer makes the decision to “mandate,” versus “encourage,” that its employees be vaccinated. Of course, depending on the industry in question, it is possible and even likely that a state or local government or health department might require certain employees to get vaccinated. This would provide employers with cover sufficient to avoid blame and possibly even liability when it requires its employees to get the coronavirus vaccine. Whether or not to mandate vaccines among the workforce is always a fact-specific decision that must be considered very carefully, with the assistance of experienced labor counsel. Please contact the author, Mr. Gemoets, or any of the other labor & employment attorneys at JMBM, if you have any questions in this regard.
How JMBM helps clients with COVID-related questions
During the COVID pandemic, the JMBM Labor & Employment Department has provided timely and up-to-date advice to our clients on such critical subject matters as furlough and lay-off strategies, applying paid leave laws, negotiating with unions on lay-off issues and contract modifications, COVID-related safety protocols for employees returning to the workforce, wage and hour issues, and strategies to minimize workers’ compensation claims.
For more information or assistance . . .
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Travis Gemoets is an experienced trial lawyer representing management in all facets of labor and employment law, including wage/hour class actions, claims of discrimination, harassment, wrongful termination, trade secrets and unfair competition, union/management relations and workplace violence. As a member of JMBM’s Global Hospitality Group®, he negotiates union contracts and resolves labor disputes throughout the country, defends class action claims, develops strategies for the mass onboarding and separation of employees, and recommends proactive changes to employers’ policies and practices in order to minimize potential liability risks. Contact Travis at 310.785.5387 or TGemoets@jmbm.com.
This is Jim Butler, author of www.HotelLawBlog.com and founding partner of JMBM and JMBM’s Global Hospitality Group®. We provide business and legal advice to hotel owners, developers, independent operators and investors. This advice covers critical hotel issues such as hotel purchase, sale, development, financing, franchise, management, ADA, and IP matters. We also have compelling experience in hotel litigation, union avoidance and union negotiations, and cybersecurity & data privacy.
JMBM’s Global Hospitality Group® has helped clients around the world with more than 4,300 hospitality properties worth more than $104.7 billion. Contact me at +1-310-201-3526 or jbutler@jmbm.com to discuss how we can help.