The Association recommends operators encourage rather than mandate employees get vaccinated.

With COVID-19 vaccines finally widely available, many restaurants are hoping to get their workforce vaccinated as part of the path back to normalcy. Should you mandate vaccinations or simply encourage them?

“I recommend that employers encourage rather than mandate vaccinations,” says Angelo Amador, executive director of the Restaurant Law Center, who discussed the issue during a recent National Restaurant Association podcast. Guidance from the U.S. Equal Employment Opportunity Commission indicates that businesses may mandate vaccinations under federal law, but doing so raises a number issues, including:

Legal pitfalls. By requiring vaccines you’ll need to navigate around a host of laws. Chief among these:  

  • The Americans With Disabilities Act (ADA) concerning individuals who are unable to receive a vaccine due to a disability.
  • Title VII of the Civil Rights Act, relating to employees who choose not to get vaccinated due to religious beliefs.

Workers’ Compensation claims. Like any medical procedure, vaccines could potentially cause injuries or adverse reactions. Most medical reactions related to COVID-19 vaccines have been minor. Still, if an employer requires vaccinations, it opens the door for related workers’ compensation claims.

Staffing Issues. Mandating vaccinations may force you to fire employees who don’t comply. You will need to apply the policy consistently or open yourself up for potential lawsuits, says Amador. “You can’t decide you are going to keep Joey and fire Joanie,” he points out. Ultimately, a mandate could create a staffing shortage at your operation.

Incentives for vaccinations

Given these concerns, more restaurants are encouraging—rather than mandating—vaccinations. Some are even offering incentives, most commonly in the form of paid time off  (PTO) to get vaccinated, a practice that’s gotten a nod from the federal government.

Thanks to the American Rescue Plan, small and mid-size companies can receive tax credits to offset the cost of providing paid leave for employees to receive or recover from COVID-19 vaccinations. The ARP tax credits are available to employers with fewer than 500 employees giving paid leave for COVID-19-related reasons from April 1 through September 30, 2021.

Darden Restaurants is among those companies granting paid time off. “We recognize getting vaccinated is a personal decision that you alone can make,” writes Chairman and CEO Gene Lee in a letter to staff of the Orlando, Fla.-based company, which employs more than 175,000 team members at its fullservice restaurants, including Olive Garden, LongHorn Steakhouse, and The Capital Grille.

 “To ensure that our team members who want the vaccine do not have to choose between earning income and getting vaccinated, we will provide all hourly restaurant team members up to four hours of paid time off for the purpose of receiving the COVID–19 vaccine.”

Restaurants can legally request proof of a COVID-19 vaccination before distributing an incentive, noted attorney Nora Stilestein, an associate with Sheppard Mullin, during a Restaurant Law Center webinar earlier this year on vaccinating the restaurant workforce.

Avoid follow-up questions, such as asking employees why they choose not to get vaccinated, as it may elicit information about a disability and potentially violate the ADA, Stilestein added during the webinar, which is available to watch on demand.

Educational resources can help employees make informed decisions about the safety and availability of vaccinations. Freebirds World Burrito provided team members at its 55 Texas locations with instructions on how to pre-register for the COVID-19 vaccine at their nearest vaccine hub.

The quickservice restaurant is also paying employees for up to four hours to receive the vaccine. Check out the Restaurant Industry State Vaccine Tracker, compiled by the National Restaurant Association’s ServSafe Compliance Team, to locate nearby vaccination sites. Some operators are providing transportation or reimbursing transportation costs to the closest vaccination site.

Incentives for vaccinated customers

Restaurants are encouraging customers to get vaccinated also by enticing them with perks. Krispy Kreme is offering a sweet reward for getting vaccinated, a free glazed donut. Ledo Pizza teamed up with Maryland Gov. Larry Hogan to announce that the regional chain was giving a free pizza to vaccinated state residents, until reaching 10,000 pizzas.

Chef José Andrés is awarding a $50 gift card for his Washington, D.C.-area ThinkFoodGrouprestaurants to anyone getting vaccinated starting May 8 until the country reaches a 70% vaccination rate.

And select restaurants throughout Connecticut are serving up complimentary drinks, starting May 19, to vaccinated individuals. The Connecticut Restaurant Association partnered with the State of Connecticut for the #CTDrinksOnUs campaign, in which participating restaurants offer one free drink (alcoholic or non-alcoholic) with purchase of food. That’s a toast to good health!