Like broader society, the restaurant industry must contend with the 3-way collision of economic reality, medical ethics and societal health concerns. More specifically, on September 9, 2021, President Biden issued an executive order requiring COVID-19 vaccinations for federal employees. As part of the order, the U.S. Department of Labor was instructed to require all employers with more than 100 employees to mandate vaccinations or require its employees to undergo weekly COVID-19 testing.
The restaurant industry has been forced to contend with innumerable, and often times confusing, municipal and state government executive orders. The federal order is but another mandate requiring the troubled industry to adapt once more to societal realities. First, the order was issued in response to the slow pace of vaccinations which helped give rise to the highly contagious Delta variant. The vaccine mandate is designed to slow the spread of the variant and all its troubling consequences.
For mom-and-pop restaurants, the mandate is not applicable. Of course, they still must contend with the economic impact of diners who prefer to dine at restaurants with fully vaccinated staff or perhaps the oddly converse: diners who will not eat at restaurants requiring staff (and/or guest) vaccinations. The conflict of public opinion has serious economic consequences for restaurants of all sizes.
For restaurants with more than 100 employees, such as chain or multiple brand/unit establishments, the vaccine requirement is a mandate and could be costly and present certain legal challenges. As of this writing vaccines and testing are still available at no cost. However, the vaccine and testing mandate may lead to the demise of the no-cost availability of both — giving rise to the question: who will pay for either? The employer or employee? These are but two issues that make employment lawsuits inevitable.
Another important issue is the labor shortage faced by many restaurants. The mandate will likely cause employees who are reluctant to get vaccinated or be tested to exit the restaurant industry permanently — further exacerbating labor shortages.
An additional area of concern is enforcement. The mandate begs the question: what agency will enforce its requirements and is it even operationally possible to enforce the mandate? Moreover, if it’s possible to enforce, what will be the legal consequences and penalties for noncompliance? None of these issues has been addressed yet and will likely cause additional confusion for restaurants covered by the mandate.
It should be noted that the National Restaurant Association (NRA) has come out in favor of the executive order. It would be helpful at this juncture if the NRA or a similarly situated industry group would promulgate best practice guidelines around the mandate.
— Louis J. Terminello is partner and chair of the hospitality, alcohol and leisure industry group at Greenspoon Marder.