Vaccine Mandates and Unemployment Compensation, Explained

 


September 1, 2021 – A worldwide walkout protest against vaccine mandates. (Photo by GoToVan | Flickr)

Unemployment compensation (UI) is at its core an insurance program administered jointly by the states and the federal government. The program is intended to temporarily replace a worker’s income while they remain actively looking and available for employment.  In most states, UI will replace 30%-50% of the worker’s previous income for about 26 weeks.  Certain workers are ineligible for this benefit including people who leave their jobs voluntarily and people fired “for cause,” which typically equates to willful misconduct of some sort.

Unemployment benefits have become an area of increased focus since the start of the COVID pandemic and are now taking center stage again. Recently, the FDA’s approval of the Pfizer vaccine in August has increased the number of employers enacting vaccine mandates. A recent Gartner survey found that about 46% of organizations plan to mandate vaccines to their workforce. This comes in addition to the Occupational Safety and Health Administration’s (OSHA) looming mandate for private companies with +100 employees and the White House requiring vaccines for all federal workers.

Noncompliance with these mandates has resulted in firings and will continue to as mandates expand. Northwell Health in New York, for example. recently terminated 1,400 unvaccinated workers, and Kaiser Permanente put over 2,200 unvaccinated workers on unpaid leave in California.  It is not just the healthcare industry. There have been reports of mass layoffs and terminations across a variety of workplaces – such as aviation or education. The question that remains for the workers who are resistant to the vaccine mandates is whether they will be eligible for unemployment benefits while they search for a new job.

The short answer is that workers who are fired or quit their job because of a refusal to comply with a vaccine mandate will be at the whim of their respective state when it comes to unemployment benefits.  The Department of Justice issued an opinion letter in July concluding that public and private entities are not prohibited from imposing vaccine requirements under the Food, Drug and Cosmetic Act when the vaccine is approved by the FDA. Most states allow workers to collect benefits if they are laid off, quit for “good cause,” or get fired for a reason other than “misconduct.”  Employers are within their rights to impose a mandate, and it is unlikely a labor agency would consider quitting due to the mandate to be a “good cause.” Similarly, being fired for a refusal to comply with a legal company policy is likely to be considered “misconduct.”  For these reasons, it is likely that most unvaccinated workers will not be eligible for unemployment benefits.

Some states have cleared up this gray area by issuing guidance while others are taking legislative action. New York’s Department of Labor has explained that UI determinations will be decided on a case-by-case basis that considers the type of workplace, the employer’s interest, and the employee’s reason for noncompliance.  The employer’s justification prevails in New York, and other states like Oregon, for health care facilities, nursing homes, and schools (absent a narrow exemption) and the employee would not be eligible for UI. 

Conversely. states like Iowa, Tennessee, Florida, and Kansas have passed laws specifically making workers who lose their jobs for refusing to be vaccinated eligible for unemployment benefits.  Employers have the right to protect their employees and customers by implementing vaccine requirements, and employees should be apprised of their states’ laws and interpretation on unemployment eligibility before flouting these mandates.

FisherPhillips Associate, Jack O’Connor contributed to this article.




Rick Grimaldi

A partner a Fisher Phillips, Rick is the author of FLEX; A Leader’s Guide to Staying Nimble and Mastering Transformative Change in the Workplace. Based on his thirty years of working with employers large and small, Rick’s seminal work provides a blueprint for all employers to successfully navigate the incredible changes occurring in the workplace that impact everything from hiring to terminations, and all the issues that occur in between.


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