Due to the alarming spread of the COVID-19 Delta variant among the unvaccinated, coupled with FDA approval of the Pfizer-BioNTech Vaccine, many private employers have implemented vaccine mandates. These mandates are permissible, so long as precautions are taken to comply with various anti-discrimination laws. A less obvious implication of these vaccination mandates is that employees who are discharged for failure to comply with a vaccine mandate will likely be barred from receiving unemployment insurance benefits.
As the name suggests, unemployment insurance provides benefit payments should the former employee (the “claimant”) become unemployed. These benefit payments are charged to the former employer who is then required to pay a percentage back to the State, akin to an insurance deductible. However, as with any insurance, there are conditions. The most important one is that the claimant must be out of work through no fault of their own. One common way that claimants find themselves on the wrong side of a benefits determination is by being discharged for violating their former employer’s policies and/or procedures. Such discharge is classified as either simple misconduct or gross misconduct. Claimants who were discharged for misconduct or gross misconduct by their former employer are ineligible to receive benefits and this is where the vaccination mandates are implicated. An employee who is discharged for refusal to comply with a vaccination mandate, absent a proper ADA or Title VII accommodation, is guilty of either simple misconduct or gross misconduct, the same way they would be if their discharge were for violation of another policy, such as drug testing or attendance.
For cases of simple misconduct, the claimant may only be ineligible for benefits during a penalty period, which is measured in weeks. Simple misconduct cases have an element of reasonable excuse for the violation of the employer’s policy or procedure. However, in Maryland, the Department of Labor requires the claimant to put forth evidence of such mitigating factors regarding their refusal prior to issuing a finding of simple misconduct. The penalty period can range anywhere from 4 weeks to 26 weeks, depending upon how convincing the Department of Labor finds the mitigating factors. Gross misconduct, on the other hand, requires a showing of willfulness or a wanton disregard for the employer’s policies. This is where most claimants who would be discharged for vaccination policy violations would find themselves. Most employees who are refusing vaccination mandates have no mitigating factors; they simply do not want to be vaccinated. Gross misconduct is an absolute bar to unemployment benefits until the claimant is reemployed and earns at least 25 times the amount of their original weekly benefit amount.
For an employer to successfully block a claim for benefits filed by a former employee discharged for violating the vaccination policy, the employer will need to ensure its vaccination policy is clear, communicated to the employees, and is uniformly applied. At Luchansky Law, we are well-versed in assisting employers with crafting mandatory vaccination policies as well as defending improper unemployment benefits claims. If your business would like assistance with either creating a vaccination policy or contesting an unemployment insurance claim related to its vaccination policy, give us a call at (410) 522-1020 to schedule a consultation.