Beleaguered servers are being required to stand at restaurant entrances and bar anyone who has not been fully vaccinated
Employers, large and small, including various levels of government, are now imposing compulsory vaccinations in their workplaces. Others are permitting the unvaccinated to attend but under expensive and rigorous protocols, such as requiring them to wear considerable personal protective equipment, ensuring that they are social distanced at all times from the vaccinated, barring them from using common areas such as lunchrooms, and insisting that they test regularly, often at their own expense, in order to be permitted to work.
Employers hope that these burdens will incentivize them to become vaccinated or, at least, protect the companies from negligence actions from those contracting COVID-19 in the workplace.
Many have difficulty recruiting and retaining in this era, which some are calling the Great Resignation. Invariably, some high performers are refusing to vaccinate and employers are loathe to dismiss them. There is also still the unsettled question of whether and in what circumstances refusing to vaccinate is cause for discharge. There will be many questions in each case, such as how closely that employee works with others, the number of those they interact with and the vulnerability of the population at that workplace.
On the other hand, there is increasing resistance from the vaccinated to having the unvaccinated in their midst, and requiring vaccinations is the best defence to any negligence action from those contracting the virus.
Faced with these conflicting pressures, many employers are permitting employees who will not vaccinate or to reveal their vaccination status (they should be treated the same) to work from home. But that is causing angry pushback from vaccinated employees. From their perspective, they have done their duty as employees and responsible citizens in heeding their employer’s and government’s call to vaccinate. They are also acting consistently with their own moral code which dictates an obligation to protect themselves and others.
They are upset that having performed what they saw as their duty, those who are unvaccinated are receiving the benefit of working from home. This is causing a new schism in those workplaces where only the vaccinated can attend the office, replacing the previous rift (these days such trends can be measured in weeks, sometimes days) where vaccinated employees were pressuring their employers to not permit the unvaccinated to attend the workplace at all.
Government vaccine policies are creating particular difficulties in the industry hardest hit by COVID-19.
Restaurants across Canada were devastated and many unable to pivot, at least profitably, to the take-out model. Even if they did, they still lost their servers and many other staff, and most restaurants have had tremendous difficulty bringing them back. It is difficult to be unemployed for close to two years and many restaurant workers moved on to other fields (or cities), partly because they had to and partly because they decided that their industry was too insecure and chose to find another vocation.
Now a new hurdle has been placed on that industry. Servers are being required to stand at restaurant entrances barring anyone who has not been fully vaccinated.
Some of these patrons were known to those servers during their years of patronage, and it is difficult to turn them away. But those are the easy cases. Others trying to visit the restaurant are reacting angrily to the extent that the servers find their behaviour threatening.
Some members of the public view this as a political issue. One restaurateur who supported vaccine passports (although she does not require them at her own restaurants as she says her service was all outdoors) was Toronto restaurateur Jen Agg. Since taking that public position, she has been publicly beset with protesters banging on pots, screaming at her patrons and demonstrating closely outside her premises, according to a CBC Radio report.
What is a restaurateur to do with such potential disruption, especially from potential customers when they are trying to get back on their feet financially.
It is unrealistic for the government to appoint, at taxpayers’ expense, inspectors for each restaurant to monitor and restrict who enters and paying for training for those servers who have to monitor and restrict access; it would be yet another untenable burden on already overtaxed restaurateurs. Unfortunately, many servers will decide that dealing with such angry customers and monitoring their entrance is not what they signed up for. More yet will leave this doubly plagued industry.
Got a question about employment law during COVID-19? Write to Howard at firstname.lastname@example.org.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.