The Spring of 2021 brought great optimism to the hospitality industry as vaccination rates in the US and across the world continued to rise and infections, hospitalizations, and deaths continued to fall. It seemed that the Covid 19, while not completely behind us, was in the process of being resolved.

Optimistically, people were discussing would Covid 19 be essentially eradicated like polio and small pox or would it be managed like the flu with yearly shots. As the summer of 2021 wound down, however, Covid 19's Delta, and other variants, kicked off a new wave of infections, hospitalizations, and tragically, deaths. One thing clear from the data was that while those vaccinated were not completely immune, they were significantly less likely to suffer an infection, hospitalization, or death.

In fact, according to the NY Times, the vaccinated made up 2% or fewer of the hospitalizations and deaths in 24 and 23 states respectively. Moreover, the vaccinated made up 4% or more of hospitalizations and deaths in only three and two states respectively. Clearly, there is a significant difference in how Covid 19's Delta, and other variants, affected the vaccinated and unvaccinated. Consequently, employers / business leaders are faced with a difficult decision: should their companies require employees, guests, venders, and others who enter property to be vaccinated?

While there are a number of issues surrounding the vaccine, at the end of the day, there are two overriding issues: (1) can the employer require vaccinations; and (2) should it. With regard to the first question, it is simply a legal question. Employers need to know if they are expressly prohibited from requiring vaccines and, if not express, are there risks? The second question is much more complex. Employers / Leaders are attempting to manage safety, their business' viability, politics, employee morale, publicity…. Obviously, with all of these factors affecting this decision, there is no definitive answer.

In this article, we first examine the legal environment with respect to vaccination requirements. Specifically, we first provide an overview of common law and overriding regulations that could affect vaccination polices. Next, we examine, in detail, the requirements to accommodate religion and disability under both public accommodations and employment discrimination law. Lastly, we make a plea to employers to require the vaccine.

The Common Law & Guests
There are no express statutory prohibitions on businesses' ability to require vaccinations for guests. There are, however, common law principles that warrant exploration. Under general common law principles, hotel operators have a duty to provide a room for anyone seeking accommodations. There are, however, well established exceptions to this general rule. Specifically, hotel operators may refuse service to people who are: "criminals, intoxicated, disorderly, unclean (not bathed) and unkempt, or suffering from a communicable disease." (Cournoyer, Marshall, and Morris: Hotel, Restaurant, and Travel Law 7th edition. Thomson, Delmar Learning (2008) pages 330-331).

There is not a lot of case law on the application of the Common Law with regards to people. We found a 1966 case, Commonwealth v. Guy (1966 Pa. Dist. & Cnty Dec. 173) which cited: In Raider v. Dixie Inn , 198 Ky. 152, 248 S. W. 229 (1923), where the court stated that: "It appears, therefore, fully settled that an innkeeper may lawfully refuse to entertain objectionable characters, if to do so is calculated to injure his business or to place himself, business, or other guests in a hazardous, uncomfortable, or dangerous situation…

The question, of course, is whether common law claims should deter a hotel owner or operator from requiring vaccinations from their guests. We contend no. First, Covid 19 is a communicable disease and thus, there is a strong argument that refusing to accommodate those who are not vaccinated is in accordance with the common law. Second, the damages are speculative at best and, most likely, extremely low.

In Harber v Auberge Des Fourgeres, Inc., 338 N.Y.S. 356 (App. Div. 1972) the Court held that while an inn or restaurant could refuse to serve a guest for reasonable cause, it also set a standard that that that punitive damages are only available if the guest is humiliated. Relying on Harber, in Alenick v Plaza Operating Partners, the Court held that there are no punitive damages if the guest who were turned away were not humiliated in the process.

Thus, as long as the property makes it very clear on all channels that it requires vaccinations, we see no real concern for common law violations because: (1) refusing to accommodate a non-vaccinated person should not violate the common law; and (2) as long the property does not humiliate the non-accommodated would be guest, the damages would limited to the loss (i.e. the cost of the replacement hotel) – too speculative and too low of an expected return for plaintiffs' lawyers.

Discrimination Law
There are two "protected classes" that are of concern when it comes to vaccinations: religion and disability. These classes seem they similar, but there are major differences. We examine each, separately, below:

Religion

Title VII of the Civil Rights Act of 1964 (as amended) prohibits discrimination against religion and requires the employer to accommodate employees' religious requirements as long as it is not an undue hardship. Two questions arise from these requirements: what is religion and what is an undue hardship. Again, we address each separately.

In order to be protected for their religion, employees do not have to practice a traditional or well accepted religion. Instead, employees must have a "sincerely held belief" in their religion. Thus, those who claim to be devout members of well accepted religions (e.g. Catholicism, Judaism, Islam…) could be found to be not protected because the belief is not sincere, while the "Church of Body Modification" has been accepted.

We advise employers to not contest the tenants of the religion in question because courts have been very liberal in accepting what employees define as their religions. Employers can argue that the employee does not follow the tenants, but again, this is an argument that courts have shied away from as they seemingly have not wanted to be in the business of defining religion and labeling people observant or not. This does not mean, however, that religious accommodations are a burden to employers – in fact they are not.

In Trans World Airlines, Inc. v. Hardison, (432 U.S. 63 (1977)) an employee, Larry Hardison, was a Jehovah Witness who, in order to observe his sabbath, could not work on from sundown Friday to Sundown Saturday. Because he was a person on the collectively bargained seniority list, Hardison would have had to work Saturdays "when a fellow employee went on vacation." Since it was limited to "covering" for a vacationing employee, there were few instances when this would occur.

At a recent conference, David Ritter, partner at Barnes and Thornburg in Chicago, reported that the total cost would have been under $200 to pay for another employee to cover for Hardison. In dismissing the case and finding that that the employer did not have to accommodate Hardison, the Court held: To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. The de minimis standard has been the law since 1977! Importantly, in Patterson v. Walgreens Co., (140 S. Ct. 685 (2020)) the employee sought Supreme Court review on the de minimis standard. The Court, in a 9-0 decision, refused to review the de minimis standard.

Justice Alito did write a concurring opinion arguing against the standard. No other justice joined Justice Alito's concurrence arguably solidifying the law. This does not mean, of course, that the Court would never entertain addressing this argument, but any plaintiffs'' lawyer would have to take a huge leap of faith by taking a case that will take many years and hundreds of thousands of dollars' worth of time in the hope that the Supreme Court will take the case (only a year or two after it rejected the issue), that four other justices will join Alito, and that the new standard, whatever that may be, will require the employers to accommodation employees who refuse to be vaccinated for religious reasons. This is a bet that very few, if any, plaintiffs' lawyers will take.

We conclude that there is limited risk to refusing to accommodate employees who refuse to be vaccinated and, without a legal requirement, contend that there may be more of a risk to accommodating than not accommodating. A guest or a co-worker who gets sick could argue that they were unreasonable exposed to the virus because the employer went well beyond the legal requirements of religious accommodation.

The ADA

The ADA uses the same words as religion – employers must provide reasonable accommodation that are not an undue hardship. In practice, however, these words are applied incredibly differently. Indeed, the accommodation under the ADA does not employ the de minimis standard. Instead, the undue hardship, in most judicial opinions, is seen as a question as to whether the employer can afford the accommodation (e.g. building a ramp, putting in an air filtration system…).

Obviously, TWA could have afforded $200 and thus, under the ADA Hardison's request would have been an undue hardship. There are, however, several other aspects of the ADA which make it unlikely that an employer would have to accommodate an employee under the ADA.

Courts have consistently held that the undue hardship is only the second standard that needs to be analyzed. First, the court will determine if the accommodation is "reasonable." In Vande Zande v. Wis. Dep't of Admin, (44 F.3d 538 (7th Cir. 1995)) the United States Court of Appeals for the 7th Circuit held that in order to determine reasonableness, the court needs to weigh the costs to the employer against the benefits to society of letting the disabled employee work in the chosen field. In that case, the Court held that the $150 to lower a sink so that a wheel chaired employee could use the kitchen sink as opposed to the nearby bathroom sink to wash her coffee cup was unreasonable eve n though the state could obviously afford it.

In vaccination cases, the costs to the employer would be that other employees could refuse to work, guests could refuse to come to the property, and an entire business model of advertising a safe environment would be lost. That seems to be more of a cost than $150. Of course, the benefit allows the non-vaccinated to work, which is more of benefit than a more convenient sink. Still, we believe that a court will have a very difficult time finding, from a societal standpoint, that the benefits to the employee/society outweigh the costs to the employer. Moreover, if other employees and guests refuse to come onto property, the employer can argue undue hardship too!

Unreasonable accommodation and undue hardship are not, however, employers' only arguments. Unlike religion, when it comes to the ADA, being protected is not an easy hurdle to jump. Courts consistently reject employees' contentions that they are disabled as defined the law. A disability is a physical or mental impairment that substantially limits one or more major life activities (being regarded as such or having a record of such). Real effects, not labels are determinative. Thus, a diagnosis is not sufficient and instead, the affliction must interfere with major life activities.

In addition, having a family member at home who is compromised is NOT a disability and employers do not have accommodate employees because of family members' disabilities or illnesses. Being allegoric to one ingredient in the vaccine, without any other symptom, would not constitute a disability unless courts decide that getting the vaccine or working in vaccine required workplace constitutes a major life activity. This would be huge leap and would contradict 30 years of ADA jurisprudence.

Not being disabled is not the only argument for employers. In order to be protected, employees must be able to perform the essential functions of the job. Plaintiffs' lawyers would have to prove that being vaccinated is NOT an essential function of the job. Thus, employees would have to convince the courts that mitigating the risk of infecting co-workers and guests with a deadly disease is not essential. The slope of this argument is incredibly slippery. Would this mean that employers would be forced to employ individuals with other communicable diseases? Would courts really hold that employers must allow employees with communicable diseases to interact with co-workers and guests? Does that mean that employers would be forced to allow people with, for example, measles, mumps, TB…, on the job even if their disease would expose others to risk? It's a huge leap and would, again, go against 30 years of jurisprudence.

What Should Employers Do
Covid 19 has damaged the hotel industry more than other disruption in history. While the government has vaccine requirement constraints (protections set forth in the Constitution that don't apply to private and employers), private hotels have very few, if any, limitations on their ability to require vaccinations. Indeed, the requirement for employers with 100 or more employees to be vaccinated is the subject of litigation over if it is government overreach – a legal argument that would not affect private employers). Not only is it good business and good for your employers, requiring the vaccination is good for society. The entire planet needs to get this virus behind us. At this point, the best way to do this is to ensure that as many as people as possible are vaccinated. If people can not work, travel, go to restaurants… unless they are vaccinated, they will, in all likelihood, take the vaccine. One need look no further than New York City and other municipalities that have required vaccines. After New York City required vaccinations for city employees, the rates rose for police officers and other public servants rose significantly. A rise in vaccinations can only help get the virus under control world-wide.

Some employers will argue that the current labor shortage prevents them from implementing a vaccine requirement. Will this cause some employees to quit? Probably. Should this fear drive the decision? This analysis, however, begs the question of why there is a labor shortage. The extra unemployment has run out and schools are open. It could be that people simply do not want to work in hospitality. It could also be that many employees simply do not want to spend their entire day, in mask, interacting with guests and co-workers who are not vaccinated? We believe an all vaccinated property be an employee draw and make the property a "workplace of choice."

*Editor's Note: The opinions expressed within this article are solely the author's and do not reflect the opinions and beliefs of HotelExecutive or its affiliates. Readers should use their own best judgement in deciding on using untested vaccinations.

Reprinted from the Hotel Business Review with permission from www.HotelExecutive.com