Stephanie Ferguson
Director, Global Employment Policy & Special Initiatives, U.S. Chamber of Commerce
Published
August 19, 2021
New COVID-19 cases are declining, employers are announcing back-to-office plans, enhanced unemployment insurance (UI) benefits have ended, and President Biden issued a vaccine mandate. While the Occupational Safety and Health Agency (OSHA) prepares to release the Emergency Temporary Standard (EST), many questions around vaccine mandates and what they might mean for hesitant employees are surfacing. Consistent with most other questions posed during the Pandemic, the answers are not so straightforward.
Can employers impose a vaccine mandate?
Yes, but there are exceptions.
In a Memorandum Opinion for the Deputy Counsel to the President, Acting Assistant Attorney General Dawn Johnsen argues that public and private organizations are legally able to mandate at-will employees be vaccinated when the drug is authorized under emergency use. The Equal Employment Opportunity Commission (EEOC) substantiates this position and addresses some exceptions. An employer must be able to reasonably accommodate employees that cannot receive the vaccine for reasons relating to disability or sincere religious beliefs. Further, employers must not impose requirements that disproportionately impact a protected class.
What if an employee refuses to be vaccinated despite a mandate?
The employer has options.
According to the EEOC, reasonable accommodations for employees who cannot receive the vaccine due to disabilities or religious beliefs might include assigning the employee to remote work, requiring a face mask to be worn on the job site, or requiring routine COVID-19 testing. Employers may choose to extend accommodations to all employees who refuse a vaccine despite protected class status. As for employees outside of the exceptions, businesses can terminate those who refuse to be vaccinated.
Can employees terminated for refusing the vaccine collect unemployment insurance?
It depends.
UI is a state-run program, funded primarily through state UI taxes, and administered through state workforce agencies; however, states must operate their UI programs pursuant to federal guidelines. One such guideline requires an individual to be out of work through no fault of their own to be eligible for UI. Opting out of a company policy would typically be grounds for disqualification.
In addition to federal eligibility guidelines, states have clauses that extend UI eligibility to individuals who quit with good cause and flexibility in interpreting the definition of good cause. The National Employment Law Project’s Rebecca Dixon argues that “given the overwhelming evidence of the safety of the vaccine, it’s likely that good cause would not be found.”
Certain state lawmakers do not agree. For example, the Texas Workforce Commission has stated that individuals who have been terminated for refusing the vaccine can apply for UI, and eligibility will be determined on a case-by-case basis. More recently, the Arkansas legislature passed a bill that will require employers to provide COVID-19 vaccine mandate exemptions to employees. It also prohibits employers from terminating an employee for COVID-19 vaccine-related mandates and makes employees who are fired over COVID-19 vaccines eligible for unemployment benefits.
Employers must be aware that benefits will likely be charged against the employer’s account if employees are granted UI for being terminated from or quitting a job due to vaccine mandates.
The ambiguities surrounding vaccine mandates and related UI eligibility will remain until OSHA releases the ETS. In the meantime, employers should familiarize themselves with their state’s UI laws and EEOC guidance when considering how to handle vaccine mandates and return-to-office plans. Additional resources on how to encourage employee vaccination without a mandate can be found at the Chamber’s Digital Resource Center.
About the authors
Stephanie Ferguson
Stephanie Ferguson is the Director of Global Employment Policy & Special Initiatives. Her work on the labor shortage has been cited in the Wall Street Journal, Washington Post, and Associated Press.
