On December 6th, New York City Mayor Bill de Blasio announced that all private sector employers will now be required to implement a COVID-19 vaccine mandate by December 27th. De Blasio said this requirement was being implemented to help prevent shutdowns and restrictions from happening within the city, especially as new variants continue to emerge, and cold weather descends upon the city. The rules will not allow employees to opt out of vaccination via regular testing. The penalty that will be imposed on businesses for not enforcing the mandate were not disclosed. With this news making headlines, hoteliers may be wondering how they will need to handle vaccination mandates. To learn more about this timely topic and other labor and employment issues during COVID-19, we spoke with Carrie Hoffman, Labor and Employment Partner at Foley & Lardner.
How are hospitality organizations handling vaccination mandates?
Given the hodgepodge of state law issues (meaning outlawing mandates versus requiring mandates) and the current uncertainty surrounding the OSHA ETS mandate, my experience is that most hospitality organizations are only mandating in jurisdictions where they have to do so and preparing to implement a mandatory vaccination/weekly testing obligation should the OSHA ETS be upheld by courts.
What would happen if employees lie about their vaccination status or weekly COVID test results and bring COVID to work?
This depends on whether the OSHA ETS is in place or not. If it is in place, then employees should not be able to lie about their weekly COVID testing as the rules prohibit COVID tests to be both self-administered and self-read. While it is certainly possible for an employee to lie about their vaccination status, an employer’s liability for that will depend on the specific facts – meaning did the employer have reason to know that they employee was lying about their vaccination status. For example, it is apparent that the vaccination card has been printed on the employee’s own printer, etc. If that is the case, the employer could face liability if there is a COVID outbreak – though again for most employers this will involve worker’s compensation claims versus negligence allegations. In those circumstances, an employee will need to demonstrate that the employer was grossly negligent to overcome the worker’s compensation bar.
What are some other issues that are beginning to pop up when it comes to labor and employment in this new framework for hospitality?
Masking requirements are becoming an issue with employees no longer liking them. However, for employees with customer facing positions, there is often an expectation that the employees will be masked. To address this issue, hospitality employers need to craft clear policies to account for these issues.
As mobile tipping takes off, what positives does it bring to the table for employees and employers? What are some of the cons or possible issues with it?
The obvious pros are the ease at which a customer can tip and the ability to cut down on person-to-person interactions, which reduces the chances of transmitting COVID. Some of the cons include that customers can often overlook these obligations, as the apps often provide x% options versus the freedom to tip as the customer sees fit. Additionally, the business also has to weigh out the financial investment that will be needed in both implementing the technology and the man hours to train employees to use it against their current operational budgets.
How are demands for higher minimum wages affecting the hotel industry as a whole?
Clearly, there is a worker shortage and hospitality has been heavily impacted by this issue and has had a difficult time keeping pace with that, especially given the wage crunch that we are experiencing – meaning that people are spending less due to COVID and less willing to work in the front lines of hospitality where the wages are the lowest. The pandemic also made people spend less so they don’t feel the need to earn as much.”
Any other labor/employment issues right now that should be top of mind for hoteliers moving into 2022?
The biggest issue is labor shortage and the fact that the younger employees that are attracted to these types of positions do not respond to strict rules if they don’t believe they make sense. Next is the safety issue – meaning that while hoteliers may require their employees to mask up, they are not requiring guests to do the same and many employees feel unsafe given their interaction with the public.