In late 2020, when vaccine approval seemed imminent, we reported that law firms were experiencing increased numbers of questions about whether employers had the legal authority to require workers to be vaccinated. As we noted then, some industries already have much leeway in requiring vaccinations, particularly the healthcare system, where, for example, many workers need to get flu shots every year to work.
Now, as the vaccine rollout is speeding up, these questions are becoming more frequent. In the latest development, a 34-year-old server at a tavern in Brooklyn was fired, allegedly for refusing to be vaccinated. Her firing comes just as the city has allowed indoor dining to resume in a limited capacity across the city’s five boroughs in the hopes of reviving the industry which employs so many people in the city. Restaurant workers are one of the first groups of workers after those in the healthcare industry to qualify for vaccination.
According to the New York Times, the employees at the Red Hook Tavern were told by their employer that they were required to be vaccinated. When a server, Bonnie Jacobson, refused, citing the desire to have more time to study further the effects of the vaccine on fertility, she was fired.
Jacobson’s experience demonstrates how much legal gray area remains in regards to vaccinations and exemptions. The EEOC did decide that employers could require vaccinations for workers, but that said workers can apply for exemptions under the ADA and the Civil Rights Act. Restaurant work poses unique problems for these rules as it is not possible for a server like Jacobson to work from home, for example.
As labor lawyer Carolyn Richmond, an advisor to the New York City Hospitality Alliance, stated in the article, such stringent vaccination requirements by employers are premature, particularly as vaccine access remains both highly uneven due to race and class disparities, language and technology barriers and susceptible to supply chain issues, as the recent cold snap that hit Texas demonstrated.
Jacobson’s specific situation also highlights an additional issue, the lack of hard data on vaccination and pregnancy. The WHO has recommended against pregnant women getting vaccinated unless they are otherwise at significant risk and despite the fact that Dr. Fauci has said he sees no red flags after more than 10,000 pregnant women have been vaccinated, there remains almost no research on the effects the myriad available vaccines may have on those pregnant or seeking to become pregnant.
