Back in December, we looked at the question of whether or not an employer could investigate your holiday travel plans and impose disciplinary measures, including terminating your employment, if you were violating stay-at-home orders or social distancing restrictions. At that time, vaccines were still not generally available, but I questioned whether or not vaccinations could be made mandatory once they began rolling out. Barely two months later, we have the answer to the second question. A waitress at a New York City eatery has been given her walking papers after she declined to be vaccinated, citing concerns over whether or not the shot might affect her fertility. (NY Post)
A New York City waitress says she was fired from a popular Brooklyn restaurant after choosing not to get the COVID-19 vaccine for fear it might hurt her chances of getting pregnant.
Bonnie Jacobson, 34, told The Post that the management at Red Hook Tavern canned her on Monday because she balked at getting the shot immediately.
“It was shocking to me,” she said Wednesday. “I went through the stages: I’m hurt, I’m in shock — then I got mad.”
Foodservice workers were only added to the list of people eligible for vaccinations in the past two weeks. It looks like the Red Hook Tavern moved immediately to send out a notice to all employees, saying that they would have to sign up for a vaccination immediately. Jacobson wrote back, saying that she was not an anti-vaxxer, but she and her husband were trying to have a baby and she wanted to see more data on any possible impact the vaccines might have on fertility. The next day, at the end of a 13-hour shift, she was fired.
Jacobson clearly seems to have a case to make here. The employer sent out a notification to all workers about getting vaccinated, but they specifically included an exception for anyone with a medical condition that might cause issues. Being pregnant (or even attempting to become pregnant) is clearly a “medical condition.” Also, while the CDC hasn’t cautioned anyone who is pregnant against getting the vaccine, they do say it’s a personal choice and expectant mothers should consult their doctors. Further, the pharmaceutical companies have only begun testing the vaccines on pregnant women this week. We’re not going to know the official answer to that question for months.
For their part, the management team at the Red Hook Tavern is saying that they put this policy in place “to keep our team and guests safe.” But after all the media attention began, the owner said that they’re looking at changing the policy to be more “flexible.”
That will be too late for Jacobson, who said she is considering pursuing legal action and won’t be returning to work while she and her husband focus on family planning. I’ve been warning that this was coming for a while now. While not using the name explicitly, this is one of the first cases we’ve seen where an employer is requiring an immunity passport as a requirement to hold a job. Bonnie Jacobson made what seems like a sensible and precautionary decision and lost her employment because of it.
Could a lawsuit actually succeed in her case? The Equal Employment Opportunity Commission changed its rules in December to say that employers could make vaccinations mandatory as a condition of employment, but there were exceptions to the rule. Jacobson might be able to prevail if it’s determined that she qualifies under one of the exceptions, but that’s not going to be the case for everyone. For the majority of people, if you decide to opt against getting the shot, you may need some of that federally enhanced unemployment money for a long time to come.