(This post originally appeared on The Guardian)
This week a New York City restaurant made news because it allegedly fired an employee because she refused to get vaccinated.
According to the New York Times, the waitress, who worked in Brooklyn’s Red Hook Tavern, did not want to get a Covid vaccine shot because she was concerned that the vaccine might affect her chances of becoming pregnant in the future. “I totally support the vaccine,” she said. “If it wasn’t for this one thing, I would probably get it.”
Unfortunately, her bosses saw things differently. The restaurant, which has a policy that requires all of its employees to get vaccinated, terminated the employee. The owner, according to the report, refused to comment on the situation but did say that the restaurant revised its policies to “make it clearer to employees how they could seek an exemption from getting vaccinated”.
The situation is one that most businesses – big and small – are already facing, or will face in the weeks ahead: do we terminate an employee who refuses to get a vaccine? Many companies are choosing this route. Other companies are taking the opposite approach and instead offering incentives to those that get the shot. For example, Dollar General, Lidl and others including McDonald’s and Trader Joe’s are actually paying their employees with cash or added time off to get vaccinated. There are even some businesses – like this innovative restaurant in Detroit – that are offering discounts to customers who can show they have done the same.
Regardless, every company has to address the issue and have a policy.
“My first piece of advice to employers who require vaccinations is to contact your insurance broker and find out exactly what coverages you have that may apply to a mandatory Covid vaccination policy,” said Claude Schoenberg, an employment attorney based in Bala Cynwyd, Pennsylvania. “You need to know what protection you might have in case an employee suffers an adverse reaction to a mandated Covid vaccine. You should consider whether that amount of insurance protection is sufficient.”
Then there’s the issue of whether just a single one-size-fits-all policy makes sense. Schoenberg is advising his clients to ask themselves whether a Covid vaccination policy would be beneficial to all operations. He suggests considering whether some operations are more safety sensitive than others or if some employees are more at risk than others to contract Covid, based on their work location and proximity to other employees.
He also recommends considering what would happen if employees resist vaccination due to their religious leanings or a valid medical reason and also how such a vaccination policy would be implemented. “Will an employer offer Covid vaccination on premises and at employer cost?” he asks. “Will these vaccinations occur during working hours? Will the employer pay employees for time spent receiving a mandatory Covid vaccination?”
All of these considerations, and others, need to be taken into account when coming up with your policy. So what happens if you don’t have a policy? That’s a road some of my clients are taking.
“What do I care if an employee gets vaccinated or not?” one owner of a small service company told me this week. “If he or she gets sick, that’s their problem. I know I’ll be getting vaccinated so I won’t likely get sick, and neither will others in my office who do the same.”
That approach is also valid, as long as he’s prepared to absorb the not insubstantial costs of an employee who has to miss work due to illness. That’s a reason why some employers, like the restaurant owner in Brooklyn I imagine, are requiring vaccinations of their workers.
The bottom line is that the decision whether or not to require your employees to get vaccinated is still up to the owner of the company. There are no federal guidelines that require Covid vaccinations for workers just like there have been none requiring such vaccinations for the flu or shingles. It’s your workplace so you’re free to choose. But, given the unusual nature of a global pandemic and the ongoing uncertainty of its outcome, it’s still probably a good idea to talk to an expert.
“Contact your attorney,” says Schoenberg. “You won’t regret investing time and money obtaining trusted advice and counsel concerning such an important decision.”
