Vaccination: Shot or Chaser

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 why 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 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.

28 thoughts on “Vaccination: Shot or Chaser

  1. Rob McMillin

    For what it’s worth, a number of women conceived during the Pfizer and/or Moderna trials. Pregnant women are at higher risk of severe COVID-19, so you’re way better off getting vaccinated — if you can even find a shot.

    1. KP

      Actually, Pfizer & Moderna haven’t produced vaccines, they fail to meet the accepted definition of a vaccine. They have produced a gene modification system, where the RNA they inject takes over your cell’s production apparatus like a virus does. If you get the vaccine while infected with another virus, you can expect the Covid RNA to become part of that virus too, so maybe we get super-infective colds or polio or measles. The ACE2 binding proteins in Covid didn’t come from any other coronavirus.
      We all have to take this gamble with our lives, and with very little real information. I’m sure the lawyers will sort it out in a decade of two.

        1. SHG Post author

          Somebody somewhere will tell you that they like the flavor of Clorox, because they just can’t control themselves.

  2. Elpey P.

    Speaking of conflicting interests, the ascendant dogma would say that treating this as a Title VII sex discrimination case is itself an instance of gender discrimination. Something does have to give, and in the competition of intersectionality the advantage switches to smaller numbers and social constructions.

  3. B. McLeod

    Here in the flats, this wouldn’t even be a possibility for anyone under age 70, unless they are working a health care job on the side.

    One of the problems with new vaccines is that we don’t know when we will know if there is a problem. If a layperson goes to “study” this right now, all they will find is the official information from the trials, which doesn’t extend to long term effects, and a bunch of untested, competing theories in circulation from various conspiracy theorists. That is likely to remain true for years, and, like this urban dive, businesses aren’t going to be inclined to wait on the science.

  4. Ljakaar67

    > 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.

    I appreciate your post as an example of when everyone can’t get their way, or life just isn’t fair, but in this particular case I think there is possibly a reasonable accommodation: The waitress could agree to wear n95 masks during all shifts, and to take a rapid antigen test prior to each shift.

    I think the cost of that would be $30 or so per shift for the test, and amortizing the cost of the n95s over multiple uses. I don’t know what $30 per shift does in terms of the legal phrase reasonable accommodations, but at the least it seems a technically correct approach if not legally correct or economically correct.

    1. SHG Post author

      Perhaps that would be a reasonable accommodation, or perhaps that conflicts with how he wants to run his restaurant. In either event, it’s not up to you or me (unless you’re the restaurant owner, as I’m not) to decide whether her fears dictate the rules of the restaurant staff getting vaccinated.

  5. Pedantic Grammar Police

    I hope and expect that judges will strike down attempts to force experimental vaccines on unwilling guinea pigs, including backdoor methods such as requiring them for employees.

      1. Pedantic Grammar Police

        Vaccines normally go through several years of development, including animal studies and years of human trials, before being approved by the FDA. The coronavirus vaccine has not been approved by the FDA and there were no animal studies. The first set of human trials will be finishing in 2023. It has an FDA emergency authorization which indemnifies the manufacturers from any harm caused by the vaccine. If that isn’t enough to raise a doubt, creepy Bill Gates is involved.

        You don’t need a tinfoil hat to be doubtful. Those MSM anchors who are telling you how wonderful and safe the vaccine is are not necessarily trustworthy authorities on vaccine safety.

        1. SHG Post author

          All of that may be true, but when we’re in the midst of a pandemic, we adjust to address exigent conditions. Doubts are entirely rational (as I said in the post), but what to do about it isn’t to expect judges to strike down employers requiring it of their employees.

        2. Hunting Guy

          Eileen Cronin, Thalidomide surviver.

          “I was born without lower legs and a hand with missing fingers that we called “the claw.” Leslie was born with an underdeveloped upper body. Her shoulders and arms are thin as reeds, and she has no hands.“

          They say it’s safe. Are you willing to bet your future children’s life on it?

          1. Miles

            Is that tin foil hat on too tight? No one is forcing anyone to get the vaccine. You just don’t get to keep your job if your boss requires it.

            Life is full of choices, and this is another one. Life is also full of risks. Maybe you die of COVID. Maybe your baby has three eyes and a claw.

            1. SHG Post author

              An you point out, the only issue here is job or no job, not taking the vaccine. It’s an aspect of the scenario in the post that I neglected to address, the belief that having a job is a right, such that a reasonable decision made by an employer is subject to approval by an employee.

            2. Pedantic Grammar Police

              Decisions made by employers may not be subject to approval by the employee, but they are subject to approval by the courts. There will be lawsuits. Judges and juries will determine whether it is reasonable for employers to force their employees into a medical experiment.

            3. SHG Post author

              This is the kind of dumb, and wrong, comment that makes me think non-lawyers shouldn’t be allowed to comment here.

Comments are closed.