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States Try to Make Jobless Aid Part of Vaccine Mandate Pushback

Aug. 31, 2021, 6:04 PM

Employers considering Covid-19 vaccine mandates might soon face one more drawback in a handful of states—the cost of unemployment benefits for workers fired for refusing the shot.

A recently filed Wisconsin bill, like similar proposals pending in the Pennsylvania and Tennessee legislatures, would make workers eligible for unemployment benefits if they lose their jobs over a Covid-19 vaccine requirement.

Those proposals, if enacted, would be a departure from the normal rules of unemployment eligibility, effectively protecting workers who refuse the vaccine—part of a broader movement of legislation and governors’ orders aimed at banning or discouraging Covid-19 vaccine mandates in public settings, schools, and workplaces.

As workplace vaccine mandates become more prevalent, state legislatures and governors are likely to “ratchet up” efforts to stave off vaccine requirements, said Ashley Cuttino, an attorney with Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. in Greenville, S.C. She heads the firm’s unemployment practice and co-chairs its Covid-19 litigation group.

“The unemployment fight is an interesting angle on this,” she said. “The bigger fight currently happening is still on the issue of vaccine mandates in general.”

Typically Ineligible

Ordinarily, rules of unemployment eligibility would disqualify workers who are fired for failing to follow job requirements.

“I expect if an employee refuses to comply and loses their job that would be treated” by the state’s unemployment agency “no differently from any other act of insubordination,” and that person would be denied unemployment benefits, said Atlanta employment attorney Gregory Fidlon, who represents both workers and employers.

“That’s just like you violating any other term and condition of employment,” Cuttino said.

Even without legislative action, there could be cases in which a fired worker would qualify for benefits if they can show they requested a disability or religious accommodation and their employer didn’t consider it, Cuttino and Fidlon said.

To that end, the Texas Workforce Commission said in a newsletter earlier this year that it could deem workers who are fired over a vaccine mandate to be eligible for benefits, depending on the facts of their case.

Republican-led state governments have pushed back against mandatory Covid-19 vaccines in various ways, including legislation enacted in Florida and Texas to bar businesses from requiring customers to show vaccine passports as a condition of entry. Wisconsin Gov. Tony Evers (D) would veto his state’s bill if it passes, spokesperson Britt Cudaback said. That would shift the onus to lawmakers in the Republican-dominated legislature to override him.

But only Montana has banned employers from imposing vaccine requirements on their employees, as other states considering the idea have faced stiff resistance from chambers of commerce and health-care industry groups. The Ohio legislature heard public testimony on a similar bill Aug. 24 but postponed taking a committee vote on the measure.

Likewise, states that consider unemployment benefits eligibility or other approaches to discouraging workplace mandates could face opposition from employers.

Benefits and Consequences

The tax rates for employers paying into their states’ unemployment insurance funds are based partly on how many of their former employees receive benefits, meaning the expanded eligibility likely would lead to higher costs for businesses who fire workers over vaccines.

For this reason, Fidlon said it seems unlikely that his state, Georgia, would enact a law granting jobless aid to workers who are fired over a vaccine mandate.

“The governor and by extension the commissioner of labor seem to be very pro-employer and trying to constrict rather than expand people’s unemployment eligibility,” he said.

Policymakers who oppose vaccine mandates say the issue is a matter of individual liberty, but business groups have raised concerns about their ability to maintain a safe workplace for their employees and customers.

“Individuals are better able to determine their personal healthcare needs than government bureaucrats, elected officials, or employers. Protecting those rights is of paramount importance,” said Wisconsin state Rep. Rob Brooks (R), a sponsor of the proposal to extend unemployment benefits to fired vaccine-refusing workers.

Whether the unemployment benefits proposals will gain any traction remains to be seen. The Pennsylvania and Tennessee bills haven’t gotten a committee hearing since they were introduced earlier this year—at a time when few employers were requiring their workers to get a Covid-19 vaccine. But changing circumstances could revive them and similar measures.

“If we were at a tipping point, I would say we crossed over it with the full approval of the Pfizer” vaccine, Cuttino said. “We are seeing a large increase in the number of employers that are deciding and evaluating and now going to mandatory vaccination.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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