The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. The details of the OSHA ETS relating to the vaccine mandate for employers with 100 or more employees have not been released.
Employers have a lot of questions surrounding the vaccine mandate and among them is whether an individual would be disqualified from receiving unemployment benefits as a result of a separation for failure to take a COVID-19 vaccine or undergo weekly testing.
Michigan recently provided some information in their Michigan Employer Advisor newsletter. While this information is specific to Michigan and the rules and interpretation can vary from state to state, we suspect that many states may take a similar approach to handling Vaccine Mandate related claims.
Will an individual be disqualified from receiving unemployment benefits because of a separation for failure to take a COVID-19 vaccine or undergo weekly testing?
The short answer is that it will depend on the facts and circumstances in each case. The first step is to determine who made the move to sever the employment relationship. Did the employee quit or were they discharged?
If an employee is discharged, the employer’s policies and work rules will be material in evaluating if misconduct applies. Misconduct is generally defined as “an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” Qualification will be based on whether an individual’s failure to be vaccinated constitutes or rises to the level of misconduct.
- To prove intentional or willful disregard, the employee must be 1) aware of the employer’s interest, 2) knows or should know that certain conduct jeopardizes that interest, and 3) the employee nonetheless intentionally performs the act willfully disregarding the consequences.
- Employment experts recommend that employers with more than 100 employees should plan for the vaccine mandate and testing requirements by creating a vaccination policy for your employees. A written vaccination policy and signed acknowledgement of the policy can help in unemployment cases where the employee is discharged to prove the misconduct.
If a separation results from a worker voluntarily quitting, whether an individual is qualified for benefits will depend on whether the individual had good cause attributable to the employer for quitting the job.
- Factors for consideration will include but are not limited to, if there was a material change in the job requirements, whether the individual expressed concerns with the employer and gave the employer an opportunity to remedy those concerns and whether the individual’s quitting falls under a medical exception.
- It is important to document the conversations around a quit in these cases to show that no concerns were raised or that you were not given an opportunity to address any employee concerns before they quit.
The facts and circumstances of each case will be important. Therefore, employers are encouraged to review their policies and work rules related to required COVID-19 vaccinations and weekly testing. Thomas and Company will continue to monitor all messaging from the State Workforce Agencies and will communicate those updates as they are made available.