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December 20, 2020

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Hotel attorney: what attitude should hotels take towards mandatory COVID-19 vaccinations?

Most of the world has been waiting eagerly for the silver bullet of an effective COVID-19 antivirus vaccine to save lives, reopen businesses, save badly damaged hotels and restaurants, and restore public confidence. The FDA approval of the first two US vaccines and the massive distribution immediately thereafter are expected to provide adequate doses of the vaccine to approximately half of the US population by March 2021 and 100% of the population by summer 2021.

But almost before the spread of antiviral vaccines began, a significant fraction of anti-Vaxxers began to question the effectiveness and desirability of taking the vaccine. Many of these proponents said they don’t want to take the vaccine, or at least they want to wait. Some asked questions about the vaccine’s effectiveness and side effects. Questions about allergic reactions and religious beliefs (against the vaccine) were raised. Questions of “social control” shaped the debate and controversy. It is ironic that so many are fighting for priority to get the vaccine first while others are fighting attempts to force vaccination.

What should hotels do to protect their employees and guests? Can or should hotel employers require their publicly accessible workforce to be vaccinated? What are the important legal and business considerations in setting the right course?

My partner Travis Gemoets regularly advises the hotel industry on a wide range of labor law issues. He has decades of experience negotiating with trade unions, leading companies in closings, reopenings, handling regulatory issues and defending class actions. You can find his latest update on the important subject of mandatory vaccination below.

Can or should hotels require vaccination against the COVID-19 coronavirus?
(Can hoteliers force employees to take the coronavirus vaccine?)
by
Travis M. Gemoets, Partner & Senior Member of
JMBM’s Global Hospitality Group® and

The coronavirus pandemic devastated our country, claiming more than 300,000 lives and decimating important industries, especially hotels, restaurants and other segments of the hotel industry. With the FDA approving the Pfizer and Moderna vaccines in December 2020, a nationwide distribution of vaccines with an efficacy of 94-95% was approved in the US. It could be saving the hotel industry and the US economy.

Of course, the first priorities for vaccines are for frontline health professionals and certain high risk individuals. By spring cans will be available to all “essential workers” and by summer 2021 we expect there will be enough for the entire population of the United States.

Can an employer require workers to be vaccinated?

As the availability of coronavirus vaccine doses increases, employers will have to decide whether or not to prescribe the vaccine to their employees. Will it be a choice or a requirement for many employees? Can employers by law insist that employees receive the coronavirus vaccine?

Yes, an employer can usually impose a vaccination mandate on its employees. However, there are two main exceptions to this vaccination requirement: an employee’s religious beliefs, or an employee’s illness, which makes it inappropriate for the employee to be vaccinated.

Religious Liberation

The right to refuse vaccination in the workplace on religious grounds stems primarily from Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects workers from discrimination on the basis of a wide variety of characteristics, including religion, and applies to l private employers with 15 or more employees and to local, state and federal governments.

To be exempt, the worker must demonstrate (1) that he has a sincere religious belief and (2) that failure to vaccinate will not impose undue hardship on the employer. To obtain protection under Title VII, one’s belief must be religious and sincere. The US Equal Employment Opportunity Commission (EEOC) interprets the concept of religious belief expansively. It can include moral and non-theistic ethical beliefs about what is right and what is wrong. It doesn’t have to be rooted in the beliefs of any traditional or common organized religion. And religious belief doesn’t have to be widespread. However, it does not contain any personal or political beliefs.

However, the second point of the test is just as important. Even if the employee has a sincere religious belief, the employer need not allow the vaccination waiver if the provision of this accommodation would constitute undue hardship on the employer, placing more than a minimal burden on the employer. If a requested property endangers the health or safety of others, it is likely an undue burden. If the accommodation would lead to staff shortages, it does not have to be granted either. Concern for the health and safety of other workers, customers and other persons in the workplace that is real and justified by the nature of the work of the worker should qualify. If the employee can work 100% remotely, then rejecting the coronavirus vaccine would likely not put undue stress on the employer. Factual analysis is required based on the interaction the employee needs or expects to have with others.

The medical exception

The Americans with Disabilities Act 1990 (ADA) may exempt an employee from a vaccination mandate. However, in order for the ADA to grant this exemption, the employee must demonstrate that they have an ADA recognized disability that prevents them from taking the coronavirus vaccine, and that this vaccination exemption does not impose undue hardship on the employer. Assuming that the worker applying for the coronavirus vaccine exemption has a disability covered by the ADA, they can only refuse the coronavirus vaccine if the refusal does not impose undue hardship on the employer. Accommodation presents undue hardship if the employer faces significant costs or difficulties in providing accommodation. This is a very factual analysis that 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 large company would not be reasonable for a small company.

The EEOC has classified the coronavirus as a “direct threat” which means that “there is a significant risk of significantly affecting the health or safety of any individual or other person that cannot be eliminated or reduced through reasonable precautions”. As long as this designation persists, employers can better prescribe that employees are vaccinated against the coronavirus. In theory, this should make it easier for employers to force workers to get the coronavirus vaccine. However, it is not yet clear how the direct threat label works when applied to a coronavirus vaccination mandate.

What are the risks?

What if the employer requires an employee to take the vaccine, but the employee has side effects? Some can be quite severe, according to early reports. In this case, an entitlement to employee compensation would likely follow. What about public backlash or resistance? People have fought mask mandates, and a vaccine is far more invasive and could potentially even cause harm. These factors should be taken into account when the employer makes the decision to “commission” rather than “sponsor” vaccination of its employees. Of course, depending on the industry, it is possible and even likely that a state or local government or health department will require certain employees to be vaccinated. This would provide sufficient coverage for employers to avoid blame and possibly even liability if their employees have to receive the coronavirus vaccine. Whether or not to require vaccines in the workforce is always a factual decision that needs to be carefully considered with the help of an experienced labor advisor. If you have any questions, please contact the author, Mr. Gemoets, or one of the other labor lawyers at JMBM.

How JMBM helps customers with COVID-related issues

During the COVID pandemic, the JMBM Labor and Employment Department provided timely and up-to-date advice to our customers on critical topics such as vacation and layoff strategies, applied laws on paid vacation and negotiated layoffs with unions and contract changes, COVID-related safety protocols for employees, returning to work, wage and hourly issues, and strategies to minimize employee compensation claims.

More information or assistance. . .

An extensive library of free resources is available at HotelLawyer.com, including more than 1,000 extensive blog articles on more than 20 topics on the Hotel Law Blog, manuals, guides, checklists and industry presentations in our Resource Center, and more information about our global hospitality Group®. Listen!

Travis Gemoets is an experienced litigator who represents management on all facets of labor and labor law, including wage / hourly lawsuits, discrimination claims, harassment, wrongful termination, trade secrets and unfair competition, union and management relations, and workplace violence. As a member of JMBM’s Global Hospitality Group®, he negotiates union contracts and resolves labor disputes across the country, defends class action claims, develops strategies for mass employee integration and segregation, and recommends proactive changes to employer policies and practices in order to minimize potential liability risks. Contact Travis at 310.785.5387 or [email protected].

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 business owners, developers, independent operators and investors. This advice covers critical hotel issues such as: B. Buying, selling, developing, financing, franchising, managing, ADA and hotel intellectual property. We also have strong experience in hotel disputes, union avoidance and negotiation, and cybersecurity and privacy.

JMBM’s Global Hospitality Group® has served clients around the world with more than 4,300 hotel properties valued at more than $ 104.7 billion. Contact me at 1-310-201-3526 or [email protected] to discuss how we can help.

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