What Restaurants Need to Know About the Proposed OSHA Mandate

Leaders from various industries can agree that the proposed COVID-19 vaccine mandate has put them in a difficult and confusing place with employees. Questions around the validity of the mandate and whether to fully enforce or simply encourage vaccination continue to loom. The restaurant industry is uniquely affected by this mandate as industry leaders navigate next steps to support employees amid an increasing labor shortage.

What Is the Proposed OSHA Mandate?

On Thursday, Sept. 9, 2021, President Joe Biden and his administration announced that it would be directing OSHA to issue an Emergency Temporary Standard (ETS) that would mandate businesses, including restaurants, with 100 or more employees to require employees to either vaccinate or participate in weekly COVID-19 testing. Businesses refusing to comply with the mandate could face up to $14,000 in fines and possibly more for willful violations.

The proposed mandate has not yet been released by OSHA; therefore, much remains to be seen. In the meantime, the proposal has created confusion for employers. Business owners are concerned with how enforcing this mandate will affect an already fragile labor market in their industry. This adds to challenges like who pays for weekly tests, tracking and paying for testing time under wage and hour laws, managing employees who test positive or do not comply, how managers will work alongside employees to carve out time to receive the vaccine and many other potential administrative consequences of the proposed mandate.

Here’s Where the Restaurant Industry Comes into Play

The restaurant industry is not a newcomer to change, especially during the coronavirus pandemic. Restaurants have pivoted their entire business model to be “COVID-19 friendly,” while simultaneously balancing a national labor shortage. This new mandate will, once again, require restaurants to reevaluate how they operate.

While restaurant employers with under 100 employees do not have to take specific action regarding the mandate right now, they should be prepared for potential future repercussions if requirements change.

Unlike other industries, fast-food companies are historically one of the most popular workplaces for teenagers. This presents a unique situation for employers with workers under 18-years-old. These employees are not legal adults, and, therefore, some may need the consent of a parent or guardian to be vaccinated. We can reasonably hope that the mandate will provide clarity on this question, among the many other questions posed by the mandate.

How the Restaurant Industry Can Prepare Young Workers for Future Mandates

As employers plan their next course of action, they must take workers under 18-years-old into consideration. The need for parental consent regarding vaccinations is specific to each state. A

majority of states require parental consent for vaccinations if the person is under 18-years-old. In such states, employers may consider discussing the mandate with workers and their parents to keep both necessary parties informed.

No matter the age of the employee, employers must approach this mandate with patience. Some employees will be excited about the new safety precautions, while others will feel marginalized. It is crucial employers extend grace as they navigate this new change with employees of all ages and opinions.

Things to Keep in Mind to Ease the Potential Chaos

For restaurants with 100 or more employees, employers should begin the brainstorming process, ideally with their legal counsel, to prepare for implementing changes once the mandate is issued. While compliance with the rule will be important, staying consistent to a company’s culture is one way to ease the chaos that typically follows change. If the company is usually a casual environment, employers need to develop a plan that reflects its culture while staying within the bounds of the mandate.

For restaurants with fewer than 100 employees, the same advice applies. Employers should begin thinking through actionable steps in the event the mandate is extended to include them. These next steps should include a plan for workers under 18-years-old, which remain integral to the labor force in the restaurant industry.

Above all, it is important to understand that this industry is a key player in our culture and will bounce back. While implementing changes can slow progress, the restaurant industry will adapt and continue to play a pivotal role in economic growth within the labor force.