Fact check: Workers fired for refusing a vaccine are unlikely to qualify for unemployment

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More than 50 health care and medical groups called for employers of health and long-term care workers to mandate COVID-19 vaccines.

USA TODAY

The claim: Employees who are fired for refusing a vaccine are eligible for unemployment benefits

The highly transmissible delta coronavirus variant has caused a nationwide spike in cases, hospitalizations and deaths. As a result, an increasing number of workplaces are requiring employees to provide proof of vaccination.

In some states, company vaccine mandates have been met with opposition, with some employees resigning and filing lawsuits. A Morning Consult survey in June found that 18% of employees said they would quit if faced with pandemic-related mandates at work.

But some social media users say workers should avoid quitting their jobs if they want to collect unemployment benefits.

“If your employer is mandating any pokes, DO NOT QUIT,” reads an Aug. 4 Facebook post, which accumulated more than 5,000 shares within two days. “Make them fire you. That way, you get unemployment benefits and can pursue legal action.”

But that’s not accurate, according to a dozen employment and labor experts who spoke with USA TODAY.

A worker who does not comply with a company’s policy to get vaccinated is generally ineligible for unemployment benefits, experts say. But there are some exceptions – and unemployment qualification is not the same in every state.

Fact check:CDC didn’t say COVID-19 vaccinated are ‘superspreaders’, vaccines failing

“Employees should not refuse vaccination relying on the assumption that they will be able to collect unemployment,” Natalie Sanders, an employment law attorney with Brooks Pierce, said in an email.

The Facebook user who shared the post did not return a request for comment.

Companies can impose vaccine mandates

Private companies are free to set conditions of employment as long as they do not violate existing state and federal laws, legal experts say. And there is no federal law prohibiting companies from requiring vaccines.

Guidance from the U.S. Equal Employment Opportunity Commission says employers are not prohibited from requiring employees who are physically at the workplace to get vaccinated, as long as the requirements comply with other workplace laws. For example, the requirements must provide reasonable accommodations for those with disabilities and religious exemptions. Similarly, the U.S. Justice Department wrote in a legal opinion that businesses may lawfully require employees to get vaccinated against COVID-19.

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Jeffrey Hirsch, a University of North Carolina law professor, said workplace vaccine mandates are comparable to uniform requirements.

“American employment law is very deferential to employers, which are able to exert a lot of control over workers,” Hirsch said via email. “The COVID vaccine is just one example of this ability. While it’s obviously a politically charged one, it’s really no different in substance from a large number of others that have existed for a very long time.”

Several legal experts emphasized that because COVID-19 vaccines are still new, it’s likely vaccine mandates by private companies will be challenged in the courts, and rules could change.

More: Vaccine mandates are gaining momentum: Here’s what your employer is allowed to ask of you

“The environment is highly dynamic and changing every week,” Richard Tarpey, assistant professor of management at Middle Tennessee State University, said in an email. “The intense emotions and deep polarizations involved in the vaccination issue make it extremely difficult to predict.”

Unemployment eligibility depends on state guidelines

It depends on the state, but in general an employee who is fired for refusing to comply with a company’s vaccination requirements is not eligible to collect unemployment, legal experts say.

Jennifer Shinall, a professor of law at Vanderbilt University, said employees are usually barred from getting unemployment benefits if they quit or if the employer had cause for termination.

“But every state defines what ’cause’ is a little bit differently,” Shinall said. “Some states have more guidance than others, and the COVID vaccine itself is relatively new, so certainly these employer mandates are very new.”

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Labor and employment attorney Charles Krugel said there are some common standards that undergird unemployment eligibility throughout the country.

If employees are fired for violating a known workplace policy and were treated the same as their peers, they are unlikely to receive unemployment benefits. For example, if an employee refused to follow a company’s dress code and got fired, they would not be eligible for unemployment, Hisaid.

But employees who can prove a medical or religious exemption may have a claim, experts say.

“There is no one-size-fits-all answer,” Michael Elkins, founder and partner of the labor and employment firm MLE Law, said in an email. “If an employee was fired for refusing a company-wide policy that applied to everyone, like getting vaccinated, that could be considered misconduct, and they could lose out on unemployment as a result.”

Fact check: 6 of the most persistent misconceptions about COVID-19 vaccines

Tarpey said that in most situations unemployment will be denied to those who don’t comply with a company vaccine mandate, but there are some “emerging outliers.”

For example, he said, a pending Tennessee bill includes a provision that prohibits denying unemployment benefits if an employee quits because of a vaccine requirement. Similar legislation, including bills that protect the unemployment benefits of terminated employees, has been proposed in Alaska, Arizona, Idaho, Indiana and Michigan, among other states.

“If a state has a law prohibiting termination of employees for refusal of vaccination, we can expect individuals to have solid claims for unemployment benefits and other forms of relief if they are terminated for refusing the vaccination,” Tarpey said.

Our rating: Partly false

Based on our research, we rate PARTLY FALSE the claim that employees who refuse a vaccine are eligible for unemployment benefits. Legal experts say employees who violate company policy by refusing to get vaccinated can be terminated for misconduct, which usually disqualifies an employee from unemployment benefits. States interpret misconduct differently, however, and they have different guidelines for unemployment benefits. Workers with proof of a medical or religious exemption may still be eligible to collect unemployment if they refuse the vaccine.

Our fact-check sources:

U.S. Department of Labor, accessed Aug. 6, How Do I File for Unemployment Insurance?Michael Elkins, Aug. 6, Email exchange with USA TODAYRichard Tarpey, Aug. 6 Email exchange with USA TODAYOpen States, Jan. 13, SB 186 Tennessee Senate BillAlaska State Legislature, accessed Aug. 6, HB 175: “An Act relating to COVID-19 immunization rights.” Arizona State Legislature, accessed Aug. 6, SB 1648Idaho State Legislature, accessed Aug. 6, House Bill No. 140Indiana General Assembly, Jan. 4, Senate Bill No. 74Michigan Legislature, accessed Aug. 6, House Bill 4471Charles Krugel, Aug. 6, Email exchange with USA TODAYJennifer Shinall, Aug. 6, Phone interview with USA TODAYU.S. Equal Employment Opportunity Commission, May 28, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO LawsThe Department of Justice, July 6, Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use AuthorizationCharles Krugel, Aug. 6, Email exchange with USA TODAYNatalie Sanders, Aug. 6, Email exchange with USA TODAYJared Carter, Aug. 6, Email exchange with USA TODAYJeffrey Hirsch, Aug. 6, Email exchange with USA TODAYChase Hattaway, Aug. 6, Email exchange with USA TODAYDan Bowling, Aug. 6, Email exchange with USA TODAYYoora Pak, Aug. 6, Email exchange with USA TODAYScott Schneider, Aug. 6, Phone interview with USA TODAYIan Meklinsky, Aug. 6, Email exchange with USA TODAYAssociated Press, June 13, Judge tosses hospital workers’ vaccine requirement challengeAssociated Press, July 27, EXPLAINER: Employers have legal right to mandate COVID shots

Thank you for supporting our journalism. You can subscribe to our print edition, ad-free app, or electronic newspaper replica here.

Our fact-check work is supported in part by a grant from Facebook.

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