August 25, 2021 | Category: COVID-19, Employment, Unemployment

According to Indeed, job postings requiring new hires to be vaccinated against COVID-19 has increased 34% in recent months. Job postings requiring vaccination generally is up 90% over the same period. And this was before the Food and Drug Administration (FDA) approved the Pfizer-BioNTech for use in individuals 16 years of age and older. Currently, just over 50% of eligible individuals in the United States are fully vaccinated against COVID-19.

These statistics reflect a shift in workplace policy in recent months. They also reflect what NAE has been hearing from members in recent weeks.

However, with the shift in workplace policies regarding vaccination — for COVID-19 and in general — there are lingering questions on what those policies mean for other aspects of employment. Specifically, what effect will this have on an employee getting unemployment benefits should they be terminated or quit due to mandatory vaccination policies.

Unemployment benefits are intended for individuals who are unemployed through no fault of their own. However, individuals who quit their employment without good cause or who are discharged for misconduct in connection with work are generally denied unemployment benefits. How do these standards apply with mandatory vaccination policies?

Federal and Nevada law do not prevent or prohibit employers from requiring employees to be vaccinated for COVID-19. Therefore, implementing mandatory vaccination policies is permissible. However, employers want to make sure that their mandatory vaccination policies address reasonable accommodation for those who are unable to get vaccinated due to a medical condition or those whose sincerely held religious beliefs prevent them from getting vaccinated to ensure they are fully complying with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).

“You Can’t Make Me. I Quit.”

Employees who resign from employment due to an employer’s mandatory vaccination policy may only be eligible for unemployment benefits if they can show good cause for quitting. If there isn’t good cause for resigning then they are ineligible for unemployment benefits.

While many employees may believe they have a good reason for quitting a job that is mandating the COVID vaccine, it doesn’t mean they have good cause under the law. Good cause is determined by the viewpoint of the reasonable person (i.e. what the reasonable person would deem is good cause for quitting available employment). Given the health and safety concerns of someone contracting COVID-19 and the safety and efficacy of the available vaccines, resigning over refusal to get vaccinated may not be viewed as good cause that would entitle someone to unemployment benefits.

“Don’t Quit. Make Them Fire You So You Can Get Unemployment.”

You may have heard some version of the above statement in the last year. However, termination isn’t a guarantee that someone will be eligible for unemployment benefits.

Failing to follow company policy is often considered misconduct in connection with work for purposes of unemployment. Therefore, an employee who does not comply with a company policy can be terminated and is generally not entitled to unemployment benefits. That includes failure to comply with a company’s mandatory COVID vaccination policy. However, if an employee can show proof of a medical exemption or religious objection to receiving the COVID-19 vaccine, they may be eligible for unemployment benefits.

Remember, the decision on whether an individual is entitled to unemployment benefits or not is determined by the state considering the unique facts of each situation — not the employer or the employee.

Employers who wish to implement a COVID-19 vaccination requirement in the workplace should make sure they have a written policy in place that is communicated to their employees. Need a written policy? We have a sample COVID-19 Vaccination Policy available for download from our Member Portal.

NAE will continue to monitor the latest developments around COVID-19 and the workplace, including guidance on vaccines, mask mandates, etc., and provide updates as they become available. NAE members are always encouraged to contact a member of our team of HR and legal professionals with questions or to discuss policies. Not a member? Join today and begin enjoying the benefits of membership.