Employment Law and COVID-19
After more than a year of capacity restrictions in many locales, restaurants are fully open for business—but it’s not business as usual. With the Delta variant on the rise, pandemic issues loom, including COVID-19-related staffing protocols about vaccinations, employee screening and accommodating workers with disabilities.
During a recent National Restaurant Association webinar, Sharon Rennert, senior attorney advisor for the U.S. Equal Employment Opportunity Commission, provided her expertise on these legal issues. Watch the full webinar, Returning to the Workplace: COVID-19 and the Federal Equal Employment Opportunity Laws, on demand. See below for some FAQs.
Can restaurants require that their employees be vaccinated against COVID-19?
Businesses can mandate employee vaccinations without violating federal Equal Employment Opportunity Commission (EEOC) laws. However, they may need to accommodate employees who cannot be vaccinated because of a disability or a conflict with their religious beliefs in accordance with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.
To avoid these legalities, the National Restaurant Association recommends that restaurants encourage rather mandate vaccines.
If I mandate vaccinations, how do I handle employees who cannot be vaccinated because of a disability or a religious belief?
If an employee cannot be vaccinated because of a disability, you must determine whether remaining unvaccinated poses a “direct threat” (significant risk of substantial harm) to themselves or others. If so, you’ll need to explore whether an accommodation can eliminate or significantly reduce the risk. For example, an unvaccinated employee might wear a face mask, work at a social distance from coworkers, work a modified shift or accept a reassignment.
According to the ADA, employers must provide an accommodation unless doing so causes “undue hardship.” “You have to show significant expense or significant difficulty,” says Rennert. But “undue hardship” takes on a different meaning, with a lower expectation, when it comes to religious accommodations. Under Title VII, “undue hardship” for religious accommodation is anything that requires more than a minimal cost or burden on the employer.
Can I request proof that an employee is fully vaccinated?
Yes, according to federal EEOC laws. Asking employees about their vaccination status is not a “disability-related question” under the ADA. (Check your state laws to ensure they also allow this.) Refrain from sharing this confidential medical information with co-workers or customers.
Can I screen employees for COVID-19?
Temperature screens are fine, as are questions about COVID-19 symptoms, COVID-19 diagnosis and exposure to anyone with COVID-19. Avoid asking specifically about family members, as that could violate the Genetic Information Nondiscrimination Act. Currently, EEOC permits employers to request COVID-19 viral tests, even for fully vaccinated individuals, but the organization is closely examining that issue, says Rennert, in light of CDC’s guidelines stating that fully vaccinated people can “refrain from routine screening testing if feasible.” Check the EEOC website for any updates.
If an employee has COVID-19, can I tell the individual’s co-workers?
“You cannot release the name of the person with COVID-19,” says Rennert. Alert co-workers as to possible exposure by sharing information about when and where the infected team member worked. For example, you might say that a back-of-the-house employee who worked certain days has tested positive for COVID-19.
What if an employee requests an accommodation because of COVID concerns?
Employees may qualify for a disability-related accommodation because of a physical condition, such as being immunocompromised, or a mental condition, like an anxiety disorder. Either way, if an employee requests accommodation, “you don’t want to make the mistake of saying no as a reflexive response,” says Rennert. Work with the employee to see if there’s a possible accommodation; be creative and flexible. Consult with the Job Accommodation Network for suggestions.
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