Can Tampa Bay restaurant owners require workers to get vaccinated?

A few months ago, Tina Avila stopped going into work.

Unlike people whose transition to working remotely required flipping open a laptop, Avila’s day-to-day hinged on being in and out of her restaurants. As the longtime owner of downtown Dunedin’s Casa Tina and Pan y Vino, attempting to do her job remotely was not ideal.

But in January, Avila decided to stay home for awhile. The reason?

“My fear has always been to bring (coronavirus) home to my husband,” Avila, 53, said. Her husband, Javier, is 15 years her senior.

Business has been busy the last couple of months, as returning snowbirds and tourists have flocked to Florida. It’s not unusual to encounter diners who try to skirt safety precautions, balking at social distancing and mask ordinances.

“We’re dealing with thousands of customers a day,” Avila said. “We still have people who don’t believe in the mask mandate. It’s nerve-wracking.”

Lately, Avila says, there is cause for optimism: Her husband was vaccinated and Avila is up next.

But, when will their staff become eligible? And what will they choose to do once they are?

“Being frontline workers, we are so exposed. I think 100 percent of the front-of-the-house wants it and are ready,” Avila said.

As essential workers whose job revolves around interacting with the public, restaurant employees are widely considered to be among the more vulnerable groups.

The Centers for Disease Control and Prevention recommended including those that work in the food service industry in early inoculation groups. But while some states followed this guidance, Florida has not.

But recent statements from Gov. Ron DeSantis hint that vaccinations could open up to a much wider group in the coming weeks. Carol Dover, the president of Florida’s Restaurant and Lodging Association, said restaurants would be wise to start planning their rollout now.

Once vaccines are available, Dover said they will become valuable as a marketing tool, something that will “build consumer confidence,” especially for those still hesitant about dining out. Restaurants where all the staff have been vaccinated could advertise as such, similar to the food safety decals adorning many windows, she said.

There is some reason to believe that the vaccination rollout within the hospitality community could be bumpy: In Florida, nearly two-thirds of nursing home staffers declined the vaccine during the first round of inoculations. In February, the firing of a New York City waitress who declined to get the vaccine sent ripples throughout the hospitality industry, with many employers wondering how the scenario could play out at their workplace.

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At their restaurants, Avila said she and her husband will encourage all employees to get the vaccine once they are eligible, but they won’t require it. She senses some trepidation among her back-of-the-house cooks and dishwashers.

The dilemma is likely to become a familiar one for many in the restaurant and hospitality sector. Can employers require their staff to get the vaccine?

“The short answer is yes — the private industry can,” said Greg Hearing, an attorney specializing in labor and employment law at the Tampa firm GrayRobinson.

“I answer phone calls literally every day about this,” Hearing said. “(Restaurant owners) are thinking about getting sued by their employees, and they’re worried about getting sued by their vendors and patrons as well.”

A set of guidelines issued in December by the federal Equal Employment Opportunity Commission said employers can legally require their workers to get vaccinated, or risk being barred from the workplace if the employer can prove that the unvaccinated employee would pose a direct threat to the health and safety of themselves or others. But because the coronavirus vaccines currently available are still under Emergency Use Authorization — and not yet fully approved by the U.S. Food and Drug Administration — employees still have the option “to accept or refuse the vaccine.”

Final approval of the vaccines will come when more data is available from ongoing clinical trials. But even then, there are some exceptions for employers to consider: If a person has a religious objection to getting the vaccine or cannot get vaccinated because of a disability, the employer has to determine whether they can reasonably accommodate the employee in a manner that would not cause undue hardship.

In other professions, accommodating employees with religious or disability-related objections to the vaccine could mean placing them in a separate office away from other employees or asking them to work from home. But in the hospitality industry, a work environment where servers and bar staff are constantly facing the public, accommodating those requests can prove difficult, Hearing said.

Rather than require their workers to get the vaccine, Hearing said he has been advising his clients to “strongly encourage,” that their employees get vaccinated once they are eligible, and offer incentives to those who are willing.

The incentive route has already proved popular with some of the larger corporate restaurant groups, where gift cards or additional time off are offered to employees who get the vaccine.

Meagan Bernstein, the communications manager for Darden Restaurants, the Orlando-based group behind multiple national restaurant chains, including the Olive Garden and LongHorn Steakhouse, said employees were strongly encouraged but not required to get the vaccine. Bernstein said all hourly restaurant employees would receive up to four hours of paid time off to accommodate getting the vaccine.

A spokeswoman for Bloomin’ Brands, the Tampa-based group that runs restaurants like Outback Steakhouse and Carrabba’s Italian Grill, said their hourly employees will receive two hours of paid time off per shot.

Some local restaurateurs are taking a similar route. At Zukku Sushi, which has locations inside Tampa’s Armature Works, Wesley Chapel and Lakeland, full-time employees were recently notified that they would receive up to eight hours of paid time off when they show proof of vaccination.

Owner Ferdian Jap, who also has a Zukku Sushi location in Charlotte, NC, said he had been considering how to approach the rollout for several months. He made the announcement to his employees after North Carolina opened up vaccinations to frontline workers, including food service employees, in early March.

Most of the feedback has been positive so far, Jap said, although a few employees voiced some concern and distrust about the vaccine.

“We ha(d) a couple of questions that came in,” Jap said. “Is it required? Is it mandatory? Will I get fired if I don’t get it?”

“I’m hoping that they will see it as a stress reliever,” said Maryann Ferenc, who co-owns Tampa’s Mise en Place and The Dewey Restaurant at Berkeley Beach Club in Pass-a-Grille. Ferenc said she has been in talks with the leadership teams at her restaurants to gauge how employees feel and said they are brainstorming ideas for personalized incentives, from beach days to golf trips — “to make the whole experience a positive one.”

Ferenc pointed out that, for some employees, getting access to the vaccine will be more difficult than others.

“There are so many employees in our industry,” Ferenc said. “You’ve got language barriers, you’ve got cultural barriers ... transportation issues. If you’re working two jobs or you’re just working a long day or you have kids, you just might not have time.”

Tiffany Hubert, a spokeswoman for Ybor City restaurant and nightclub 7th & Grove, said the owners were going over options to help better facilitate getting the vaccine to their employees once they become eligible.

“We are considering partnering with local independent pharmacies to provide COVID vaccine clinics on site for those with transportation issues or just making them readily available so they won’t have to wait in long lines,” Hubert said.

For now, Hubert said, the restaurant doesn’t plan on requiring the vaccine or offering incentives.

“Everyone is understanding, the more people who are vaccinated, the quicker we can get back to some kind of normalcy.”