Bonnie Jacobson, a waitress at a restaurant in New York City’s Brooklyn district was fired from her job after she told her supervisor that she was planning to get pregnant and did not want to get the experimental COVID-19 vaccine at the present time.1 COVID-19 vaccines are being distributed in the U.S. under an Emergency Use Authorization (EUA) and, since they are not yet officially licensed as safe and effective by the U.S. Food and Drug Administration (FDA), they are still experimental.2 3
On Feb. 12, 2021, the management of the Red Hook Tavern sent an e-mail to staff stating that COVID-19 vaccination would be a requirement for employment at the restaurant. The message stated:
Please be advised that we will require that all employees receive the vaccination. This will be mandatory for all existing employees and any new hires. The exception to this policy will be if your own personal health or disability prohibits you from obtaining this vaccination. We encourage you to consult your health care professional to determine if getting a vaccine is right for you.4
Jacobson replied to the e-mail explaining that she would like to wait until more data was available on the COVID-19 vaccine’s effect on fertility.5 The management responded to her saying, “At this time your employment will be terminated. We are sad to see you go. If you do change your mind, please do not hesitate to let us know.”6
Waitress Had Concerns About Unknown Effects of Vaccine on Fertility
Jacobson was unexpectedly terminated from her job at Red Hook Tavern after she expressed concerns about the COVID-19 vaccine unknown effects on fertility.7 She said that, prior to the COVID-19 pandemic, she and her husband were trying to conceive a child but their plans had been temporarily halted in April 2020 after she lost her previous job due to pandemic social distancing restrictions for restaurants.8
In August 2020, Jacobson secured a job at the Red Hook Tavern, after which she began planning to have a child.9 Jacobson said, “I do support the vaccine. I’m not, as they say, an anti-vaxxer.” But she noted she believes there is still lack of research and data about how the vaccine affects fertility and pregnancy.10
New York City’s Restaurant Industry Trying to Recover from Pandemic Restrictions
The owner of the Red Hook Tavern did not comment on the case, although the restaurant’s policy has been revised to make it clear to employees on how to obtain exemptions.11
New York City’s restaurant industry is struggling to recover from the economic toll taken by social distancing restrictions placed on restaurants since the declaration of a COVID-19 pandemic in March 2020. In the state of New York, restaurant employees became eligible to receive experimental COVID-19 vaccines after health care workers had been vaccinated. Many restaurant owners believe that requiring their employees to get vaccinated will both protect their health but is also necessary to make customers comfortable enough to want to eat in restaurants again.12
Rogge Dunn, a labor and employment attorney in Dallas, Texas said:
They think it gives them a competitive advantage. They could say to their customers, ‘Hey, our restaurant is safe. All of our employees have been vaccinated.13
Some attorneys have noted that the issue of surrounding COVID-19 vaccinations as a requirement for employment will become much more common in the near future. Lorie E. Almon, an employment and labor lawyer at a firm called Seyfarth Shaw LLP said.
Employers are in a difficult position because on one hand, they have some duty to protect their employees and customers, and the virus is a very clear and dangerous disease that often has fatal consequences. On the other hand, workers understandably have concerns about new vaccinations of this sort.14
Almon added, “This is an issue that will come up over and over as the vaccine becomes more widely available.”15
Guidance for Employers About What They Can Do if Employees Refuse Vaccination
The Society for Human Resources Professional (SHRM) based in Alexandria, Virginia stated that many employers are asking if they can require employees to get the COVID-19 vaccine and how to proceed if employees refuse to get it.16 According to the SHRM website, the Equal Employment Opportunity Commission (EEOC) weighed in Dec. 16, 2020 with new guidance stating that employers may encourage or possibly require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.17
John Lomax, an attorney with Snell & Wilmer in Phoenix, Arizona said, “An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated.”18
FDA: COVID-19 Vaccines Distributed under EUA Must Be Voluntary
The FDA’s website makes it clear that experimental vaccines distributed under an EUA cannot be mandated and recipients must be given the option to accept or refuse the vaccine:
FDA must ensure that recipients of the vaccine under an EUA are informed, to the extent practicable given the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.19
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1 Burke M. New York City waitress fired after not getting the Covid-19 vaccine. NBC News Feb. 17, 2021.
2 U.S. Food and Drug Administration (FDA). COVID-19 Vaccines. Mar. 3, 2021.
3 FDA. Emergency Use Authorization for Vaccines Explained. Mar. 5, 2021.
5 Duffy K. A New York City Waitress Was Fired For Refusing A COVID-19 Vaccine Over Fertility Concerns. Business Insider Feb. 18, 2021.
7 Burke M. New York City waitress fired after not getting the Covid-19 vaccine. NBC News Feb. 17, 2021.
11 Haag M. N.Y. Restaurant Fires Waitress Who Wouldn’t Get Covid-19 Vaccine. The New York Times Feb. 17, 2021.
13 Sigalos M. Yes, your boss can fire you if you refuse to get a Covid vaccine. CNBC Dec. 7, 2020.
14 Haag M. N.Y. Restaurant Fires Waitress Who Wouldn’t Get Covid-19 Vaccine. The New York Times Feb. 17, 2021.
16 Nagele-Piazza L. What Employers Can Do If Workers Refuse a COVID-19 Vaccination. SHRM.
19 FDA. Emergency Use Authorization for Vaccines Explained. Mar. 5, 2021.