It was bound to happen, but who would have thought the first waitress fired would work in a corner tavern in newly-hipsterized Red Hook, Brooklyn, that scuzzy place on the wrong side of the BQE?
It looks more like the kind of place where Uncle Joe is behind the bar and momma runs the grill, but apparently it’s got enough of a staff to have “formal” rules about things, and getting vaccinated for COVID was one of them.
Over the weekend, the restaurant, the Red Hook Tavern, required that its employees get vaccinated and then terminated the waitress, Bonnie Jacobson, when she asked for time to study the vaccine’s possible effects on fertility.
To be fair, it’s entirely understandable by an establishment serving food and drink to the public would require its employees to be vaccinated. To be fair, it’s entirely understandable why an employee of child-bearing age would be reluctant to be vaccinated given the dearth of information about long-term consequences on pregnancy and fertility. Everybody is fair. Can everybody have their entirely fair way?
Ms. Jacobson’s experience comes as the restaurant industry, whose future is critical to New York’s recovery, struggles to overcome the pandemic’s heavy toll.
The issue arises in perhaps the most difficult intersection for law and passion. Restaurants are cool, so people love them even as storefronts throughout ghost town New York City are shuttered, empty, as businesses died and their boarded up carcasses are all that remains. People love restaurants and are deeply concerned for their survival. Hardware stores, not so much, as they can always order from Amazon and let their faucets drip until the shipment arrives. And restaurants employ wait staff, who are also adored because they embody the poor underpaid, underemployed worker, a job most of us had at some point before the privileges of our grad school degree kicked in.
The Red Hook Tavern’s owner, Billy Durney, would not answer questions about Ms. Jacobson, but he suggested that the issue could have been handled differently and that it had resulted in an immediate change to the restaurant’s employee guidelines for requesting an exemption.
“No one has faced these challenges before and we made a decision that we thought would best protect everyone,” he added. “And, we now realize that we need to update our policy so it’s clear to our team how the process works and what we can do to support them.”
How could it be handled differently. What changes to policy could have been, have been, made? He doesn’t say. Maybe he means she shouldn’t be fired, but suspended until she gets the vaccine? Maybe he means she could have been moved to a job at the restaurant that didn’t involve food prep or customer service, even though it’s hard to imagine what that job might be in a tavern that size. The fact that a corner tavern even has such formalized policies seems goofy, but then, this is New York, where they regulate everything from employee hairstyles to words you’re allowed to utter.
If Durney wants to “support” his employees’s choices, nothing is stopping him. If he wants to protect his employees and patrons, nothing is stopping is stopping him. He just can’t do both at the same time if he keeps her on as an unvaccinated waitress. What’s stopping him is reality, which seems to be the perpetual problem with empathetic conflicts. Everybody can’t get their way at the expense of someone else.
As vaccines first started to become available in December, the Equal Employment Opportunity Commission, the federal agency that enforces workplace discrimination laws, issued guidelines saying that companies could require workers to get vaccinated. Still, the commission said, employers had to provide “reasonable accommodations” to those with disabilities.
Is pregnancy a “disability”? The Supreme Court held it was not, but Congress disagreed. Here, however, the employee isn’t pregnant. She isn’t even contemplating imminent pregnancy. Her concern is that she might want to be pregnant at some point in the future, and wants to be sure the vaccination won’t affect her fertility.
There are many legitimate concerns about the vaccine, as so little study has been done on long term and side effects. This isn’t to say there are any, but there’s no assurance there’s not. The unfortunate consequence of rushing a vaccine to approval and market is that there will be questions unanswered. For most of us, the risks of COVID exceed the concerns of unknown, and likely non-existent, future problems, and so we shrug, get vaccinated and try our best to get back to normal life.
But pregnancy is not merely a big deal, but a difference in kind, impacting only women (provided one doesn’t consider having children a family affair). If a female employee refuses to be vaccinated because of fears that it will affect her fertility, and there is no reasonable accommodation available in a small business, is her termination in violation of Title VII as sex discrimination?
Carolyn D. Richmond, a labor lawyer who advises the NYC Hospitality Alliance, an industry group that represents the city’s restaurants and bars, said she believed that it was too early in the vaccine rollout for companies to dictate requirements because shots were still hard to get.
“Pregnancy and vaccine — as soon as you hear those words in the workplace, you should stop to think if what you are doing is right or wrong,” she said. “It has to be generally available to the employee population and it’s not. None of us are having an easy time getting appointments.”
Utterly useless advice, avoided through deflection, is pretty much where we’re at for now. The issue will arise in a multitude of ways, many not involving the inflammatory question of fertility and pregnancy, but the problem was going to happen eventually, no matter what.
If could be years before Bonnie Jacobson has a satisfactory answer to her legitimate fertility question. This delightful little tavern in Red Hook won’t last years if it doesn’t get back to business, and then Billy Durney’s investment in steak and brews will be lost and he won’t be employing much of anyone. Something has to give.
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