No Jab, No Job, No Unemployment?

Article At A Glance:

-Many employers have been rolling out COVID-19 vaccine mandates.

-Federal government workers are required to be fully vaccinated without a testing opt-out by November 22, 2021, according to the Biden Administration’s Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. This order does not reference natural immunity or a testing opt-out, despite recent data showing natural immunity is as good or superior to inoculation, that inoculation-based immunity is temporary and that vaccinated individuals can still spread COVID-19.

-Federal government contractors are soon to be subject to new contract requirements mandating COVID-19 vaccines without a testing opt-out, pursuant to the Biden Administration’s Executive Order on Ensuring Adequate Safety Protocols for Federal Contractors.

-Employers with 100 or more employees are soon to be subject to a new OSHA rule mandating COVID-19 jabs or weekly testing.

-There are legally required vaccination exemptions for medical and religious reasons but depending on the working environment and its attitude toward COVID-19 measures, many workplaces are not honoring requests for exemption, except for providing employees with unpaid leave as an “accommodation,” or as a last resort, terminating their employment entirely, regardless of the amount of contact an employee has with others.

-As a result, several workplaces, including the Federal government, state and local governments, healthcare, law enforcement, and Federal government contractors are seeing a mass exodus of employees that are getting terminated for refusing a COVID-19 vaccine.

-Because the government typically refuses unemployment benefits when a worker is terminated for gross misconduct, which could include violation of established workplace policies, this gives local employment commissions possible grounds to deny unemployment benefits for fired workers.

-Legal action has already began – in particular, one lawsuit was filed in DC Federal Court suing the Federal government worker mandate, challenging the mandate on constitutional, Title VII, and other grounds.[1]

-A law professor at the Antonin Scalia Law School, George Mason University, was granted a medical exemption based on natural immunity, but he had to take his employer to court. The case resolved informally and without a legal opinion on the matter within 14 days of the complaint’s filing.[2]

-More lawsuits are coming as employers refuse to accommodate employees under Title VII of the Civil Rights Act for religious exemptions, the Americans with Disabilities Act, and other grounds.

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Employees terminated for violating their employer’s vaccine mandate policy may be disqualified for unemployment benefits, depending on the circumstances. In Virginia, benefits are denied when the Virginia Employment Commission (VEC) finds that a claimant was discharged due to willful misconduct connected with work. The VEC considers deliberate or willful violations of an employer’s rules, which are designed to protect the employer’s legitimate interests, as misconduct. Once an employer establishes a vaccine mandate and notifies its employees of the policy, employees who violate the mandate would likely be deemed to have deliberately or willfully violated this rule.

Terminated employees seeking unemployment benefits may argue that there were mitigating circumstances, which the VEC weighs against the employer’s interests when determining whether to disqualify the claimant. Possible mitigating circumstances may be medical or religious reasons, even if the employer found that such exemptions did not apply to the terminated employees, but it is uncertain whether the VEC will accept these reasons as sufficient mitigation.

It is important to note that the VEC has been attempting to claw back benefits at high rates from those who received benefits due to the COVID-19 pandemic. The VEC will likely use more discretion moving forward to avoid repeating this issue.

Employees terminated for violating an employer’s vaccine mandate can still file for benefits, however, and if the employer does not respond to the VEC’s request for information, the VEC may grant benefits based on the information that the employee provides. But, if the employer responds to the VEC’s request for information, then it is likely that the VEC will deny benefits based on a conclusion that the employee engaged in misconduct.

In many occasions where a terminated employee is departing an organization, the organization can provide severance in exchange for waiving claims that the employee has against the employer. Employers should take care in terminating employees who are raising religious, disability, and medical exemptions related to the COVID-19 shots, and employees should be mindful about the uncertain territory these vaccine exemptions are treading on.

If you are an employer or employee needing assistance with new COVID-19 vaccine mandates, please contact Lipp Law today to understand your rights and obligations.

[1] See Costin et al. v. Biden et al., Case 1:21-cv-02484-CKK (Filed Sept. 23, 2021, D.D.C). https://lipplawfirm.com/wp-content/uploads/2021/10/Costin-et-al-v.-Biden-Petition-for-Injunction-Vaccination-Mandate-1.pdf 

[2] See https://nclalegal.org/zywicki-v-gmu/ (last accessed October 8, 2021).