Leslie A. Farber
Can Vaccine-Resistant Workers Who Lose Their Jobs Collect Unemployment?
In January, the Supreme Court blocked the Biden administration from enforcing its “vaccine or test” mandate for companies with at least 100 employees. Even without a federal mandate, private employers who are not prohibited by state law are free to impose their own vaccination policies – and many already have or plan to do so. A survey from insurance brokerage firm Willis Towers Watson found that more than half (57%) of all respondents either require or plan to require COVID-19 vaccinations.
So, what does this mean for workers who refuse to be vaccinated? Those who are fired or leave because of vaccination mandates may be sacrificing both their income and their unemployment compensation.
Each state sets its own eligibility guidelines for unemployment benefits, but they generally are available to employees who are out of work through no fault of their own. Workers who quit or are fired for cause, such as defying company policy, are generally ineligible for jobless benefits. Therefore, someone who is fired for refusing an employer’s vaccine mandate would not normally be eligible to collect unemployment.
However, five states – Arkansas, Florida, Iowa, Kansas, and Tennessee – recently changed their rules to allow employees to collect unemployment if they are fired or quit because of vaccination mandates. Several more states, including Wyoming, Wisconsin, and Missouri, are considering making similar changes, and legislators in Idaho and Michigan have proposed making discrimination based on vaccine status illegal (the bills have not passed).
It is important to keep in mind that although most states have similar statutes, the standard for denying unemployment benefits still varies from state to state. Employers should check with the relevant state agency regarding the position it will take on applications for unemployment benefits, as well as the reasonableness of vaccination mandates. For example, many states define “cause” as any refusal to follow employer rules and policies, in which case a refusal to get vaccinated would likely be sufficient. But for states that apply a higher "gross misconduct" standard, a refusal to comply with such a mandated safety rule may or may not rise to that level.
In both New Jersey and New York, unemployment insurance guidelines state that termination for not getting tested or vaccinated per employer requirements is subject to a case-by-case review for unemployment eligibility. In New York, public employees and those working in medical or educational settings are not eligible for benefits if they are fired for not getting vaccinated or tested according to their employer’s rules (with exceptions for religious or medical exemptions.) Proposed legislation that would permit workers who refuse to comply with an employer’s mandate to collect unemployment benefits is currently under consideration.
The burden of proof is typically on the employer to show that the employee should be denied unemployment benefits. A critical factor for employers is that they have a clear policy in place, and are able to show that the employee received the policy and the employee refused to comply. However, an unemployment insurance agency may consider a totality of factors, such as whether the employee had a reasonable basis for refusing the vaccination. The agency may also look at whether the company policy was applied uniformly to similarly situated employees.
If you are an employer or employee with questions or concerns about vaccination mandates and unemployment benefits, please contact us at 973.707.3322 or via email at LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.