Creating a COVID-19 Vaccination Policy: What Employers Need to Know

There is hope on the horizon for restaurants as the COVID-19 vaccine has started to be distributed across the United States. As the rollout process has picked up across the country, many employers are expressing concerns and treading lightly when it comes to implementing a COVID-19 vaccination policy in their place of work. Although the Equal Employment Opportunity Commission (EEOC) has released much anticipated guidance, there have been few mandates from a federal standpoint, and many experts think this might stay that way.

The NFA has researched and talked to franchisees and legal experts to gather information for business owners about what to consider when creating your vaccination policy.

When Will My Employees Be Eligible?

In November, the National Restaurant Association expressed concern for employees across the restaurant industry, pushing to have restaurant workers considered as essential. The association joined 14 other food-related trade groups in writing a letter to President Joe Biden urging food-service workers to be classified in one of the first groups eligible for vaccinations.

The Centers of Disease Control and Prevention (CDC) released its recommended rollout plan, classifying employees in the food-service industry in phase 1C, one of the first groups to receive the vaccine. These guidelines or similar ones are being established by state governments across the U.S., but each state and even some large cities have implemented their own plans according to what they feel is the best fit. South Carolina, New Hampshire, Rhode Island and Utah are all implementing age- or risk-based classifications as opposed to work-based classifications.

Though several states and large cities are already in the process of vaccinating restaurant workers, restaurants in many states won’t see vaccines available for their employees until late spring or even the summer.

The Big Questions

There are several big questions looming over business owners’ heads regarding the COVID-19 vaccine: Should we require it for employees? What are the legal implications? Where do I even start with building a policy?

The EEOC does allow employers to mandate the vaccine for their employees, with several exceptions.

• The employee must receive the vaccine at a third-party health care provider or pharmacy that does not have a contract with the employer to administer the vaccine.
• The employer must make accommodations for religious and/or disability-related objections under Title VII of the Civil Rights Act and/or the Americans With Disabilities Act (ADA).

In a January webinar hosted by the NFA, attorneys from Littler Mendelson P.C. noted that before COVID-19, the firm reviewed and monitored various EEOC cases involving employee vaccination, and most of the litigation focused on the failure to accommodate based on religious beliefs, practices and observances. This is important to keep in mind when considering a vaccine mandate. Make reasonable accommodations for employees who refuse, such as social distancing and wearing personal protective equipment.

Despite it being legal, many employers are questioning the moral implications of mandating the vaccine. Varying opinions regarding the side effects, effectiveness and quick development of the vaccine are causing many to remain hesitant. In a recent study by workforce technology company Harri, about one-third of restaurant, hotel and other hospitality workers indicated that they don’t intend to be vaccinated against COVID-19, largely because of fear about the aftereffects.

Because of this sentiment, many employers who are making the decisions to develop a policy are making personal choice a priority. Restaurant brands such as Chipotle and parent brands such as Yum! announced they will not be implementing a mandate, but instead strongly encouraging vaccinations.

Incentives: Giving an Extra Push

Another option that many companies are considering is incentivizing their employees to receive the vaccine. Extrinsic motivation might push workers who are on the fence about receiving the shot to roll up their sleeves.

One of the first major restaurant brands to reveal its vaccination policy was Darden Restaurants Inc., which operates several casual-dining brands such as Olive Garden and Longhorn Steakhouse. The company plans to compensate its workers with two hours of pay for each dose of the vaccine they receive. Focus Brands also recently announced that its employees will receive two hours of paid time off (PTO) for each dose.

McDonald’s released a similar policy of providing four hours of PTO for corporate and company-store employees. The other 13,000-plus stores in the U.S. owned by franchisees, however, have been left to implement policies at their own discretion.

This decision is due in part to the 2019 National Labor Relations Board ruling that the corporation was not responsible for actions that were taken at its franchised locations, meaning it is not a joint employer with its franchisees. Experts expect that many franchisors will follow McDonald’s lead and avoid creating a vaccine policy that applies to franchisees, allowing them to implement their own.

While some companies are offering PTO to receive the vaccine, others such as grocers Kroger and Lidl are simply incentivizing with cash. Big-box retailer Target is even covering the cost of a Lyft ride up to $15 each way to the vaccination site.

Data is suggesting that implementing incentives, especially financial ones, might be an appealing route for employers. A poll conducted by analytics firm Perceptyx indicated that 56% of employees would get vaccinated if they were encouraged by their employers, and 60% said they would line up for a shot if their employers offered a $100 reward.

Vaccination Policies: What are the Risks?

While the EEOC did issue direction on mandating vaccines, many business owners are still wondering about what risks are associated with using incentives for their staff members. On Feb. 1, the NFA, along with over 40 other business groups, submitted a letter to the EEOC asking for more guidance about implementing incentive policies in their businesses. As of the writing this post, the commission has yet to respond to the letter, but franchisees are encouraged to check the EEOC website regularly for a response, especially if they plan on using an incentive in their vaccination policy.

It is important to note that legal concerns, whether through the ADA, Title VII or even the Genetic Information Nondiscrimination Act, exist whether a company mandates vaccines or simply encourages them. Ultimately, business owners will need to keep their eyes peeled as more information is released to make sure their policies comply.