Some push local businesses to follow Merriman’s move to mandate vaccines
Attorneys worry employers could be held liable if worker infects customer with COVID-19
Days after chef-owner Peter Merriman announced the move to mandate vaccinations for Merriman’s Hawaii staff, including about 90 at his Kapalua location, speakers at a Chamber of Commerce Hawaii event praised his decision and encouraged other private employers to do the same.
“I want to commend Peter Merriman’s company for being out in front of private employers that are mandating the vaccines for employees … to protect their employees, their customers and anyone else they come into contact with,” Jeffrey Harris of law firm Torkildson, Katz, Hetherington, Harris and Knorek said during the chamber talk on Wednesday morning.
Harris and the firm’s John Knorek, along with Ray Vara, Hawaii Pacific Health president and CEO, addressed the legality and feasibility of mandating vaccines in the workplace.
The talk comes as Hawaii’s COVID-19 cases are surging around the state, spurring vaccination mandates for state and county workers, along with staff at a handful of private companies. Gov. David Ige recently reduced capacities for businesses around the state, while cutting back limits on indoor and outdoor social gatherings.
Aside from promoting vaccination to help reach herd immunity during the global pandemic, lawyers during the chamber talk Wednesday said that private employers could be held liable if an unvaccinated employee infects a customer.
“The key question for all plaintiffs’ attorneys is causation,” Harris said. “They can make the claim, then they spend two or three years spending your time and money, trying to show that you caused it if you don’t settle first.”
Other legal risks include potential tort claims for supervisors if they had knowledge of the peril of COVID-19 and consciously failed to avoid the peril by mandating vaccinations.
Also, they said to be aware of potential claims against businesses whose modes of operation caused customers to catch COVID-19 from other customers who were unvaccinated, particularly where businesses failed to take reasonable steps to determine whether customers were vaccinated.
While there are talks of vaccination cards being mandated to enter restaurants, bars and other businesses in Hawaii, Mayor Michael Victorino stopped short of commenting Wednesday on whether the move is in the works.
“Governor Ige has been meeting with the four county mayors to discuss possible restrictions,” county spokeswoman Teri Freitas Gorman said in an email Wednesday. “Mayor Victorino prefers not to comment on any of the options until these discussions have concluded.”
Knorek said there are two legitimate vaccination exceptions — medical or religious — and a legal standard applied to each one is different.
Under federal and state discrimination law, individuals with a disability that limits or prevents them from being vaccinated because it’s a threat to their own health have a right to reasonable accommodation to continue working without vaccination — if that doesn’t create an undue burden on the employer. Under disability law, undue burden means substantial expense or difficulty.
“What that really means in the workplace depends on structure of your workplace, how many employees you have, how that employee’s job works and so you have to do an individualized assessment for every employee that asserts a disability as a reason for not being vaccinated,” Knorek said.
Documentation from the employee may verify the medical reason. Then it requires an “interactive process” of talking to the employee and exploring options that might enable that employee to continue working.
When it comes to religious exemptions, state and federal law broadly defines religion.
“Any belief that takes the place of a traditional religion in a person’s life is considered religion,” said Knorek. “It doesn’t have to be an established church or religion. It can be an individual’s belief system that is a spiritual or religious belief.”
He added that employers should “pretty much accept the employee’s assertion of a religious belief.”
“Each of these discussions need to be documented and kept on record in a confidential file,” Knorek said. “State and federal law requires we document the interactive process and show what did we come up with, how did we arrive at a decision to accommodate or that we could not reasonably accommodate, and what are the consequences.”
The two attorneys said if reasonable accommodations can’t be made, termination or indefinite leave are allowable.
They also explained that:
• Employers have no legal or practical reason to wait for U.S. Food and Drug Administration approval before mandating vaccines.
• Under state law, private employers can’t ask unvaccinated workers to pay for their own testing. Also, if vaccination or testing is required as a condition of employment, it should be considered compensable time.
• If an employee is put on leave for not getting vaccinated, his or her name should be kept confidential.
• Regular or weekly testing may not be a medical or practical way to bypass vaccination; this approach would likely cause an “undue burden” on the employer.
Merriman on Wednesday said the move to mandate the vaccine is primarily out of concern for the well-being of employees. About 70 percent of his nearly 300 employees are vaccinated.
“We want to provide the safest workplace possible,” he said. “That’s the primary concern. We’re also concerned, of course, with the well-being of our guests. And then that just goes out to a broader area, which is that we feel like we have a civic responsibility to all come together and try to fight this thing.”
Merriman’s employees are required to receive the first dose of Pfizer or Moderna vaccines, or the single-dose Johnson & Johnson, by Sept. 10. Second doses must be done by Oct. 8.
Employees receive one shift’s worth of paid time off to get the vaccine and recover from side effects. Also, they will get $100 to be used within the brand.
Those with approved medical or religious exemptions will be required to submit a weekly negative COVID-19 test, but Merriman said regularly testing will not be allowed as a substitute for vaccination.
Merriman’s Hawaii, which began in 1988, has about 275 employees among restaurants on four islands: Oahu, Maui, Kauai and Hawaii island.
In 2011, Merriman and Bill Terry launched Handcrafted Restaurants, which include the Monkeypod by Merriman restaurants on Oahu and Maui, The Beach House on Kauai and Moku Kitchen in SALT at Kakaako.
Merriman said Wednesday there is no timeline for vaccination mandates at Handcrafted Restaurants and that decision remains under discussion.
* Kehaulani Cerizo can be reached at firstname.lastname@example.org.