Are employees terminated for violating employer’s vaccination policy eligible for unemployment benefits?

The U.S. Food and Drug Administration’s full approval of the Pfizer COVID-19 vaccine in August, coupled with the ongoing spread of the highly contagious delta variant of the coronavirus, has prompted a growing number of companies – including giants such as Google, United Airlines, McDonald’s, and Goldman Sachs – to mandate that some or all of their employees be vaccinated as a condition of employment.

On September 9, 2021, President Biden announced that the U.S. Department of Labor’s Occupational Safety and Health Administration is developing an emergency temporary standard requiring employers with 100 or more employees to mandate that their workers be vaccinated or receive weekly testing.

Here in Washington, Governor Inslee has issued Proclamation 21-14 on August 9, 2021 (amended by Proclamation 21.14.1 on August 20), requiring most Washington State government employees to be fully vaccinated by October 18, 2021. Proclamation 21.14.1 extends to certain private employers by requiring that all contractor and subcontractor staff providing in-person services to Washington State government offices be fully vaccinated by October 18, 2021 as well.

The current expectation is that employers large and small will continue to adopt mandatory vaccination polices, either voluntarily or to comply with state and federal requirements.

One of the many unsettled legal issues arising out of these mandatory COVID-19 vaccination policies is whether employees who are terminated for refusing to be vaccinated will be eligible for unemployment benefits in Washington. The answer is most cases is probably not.

The Washington State Employment Security Department (ESD) has published limited guidance on the subject. In most cases, ESD will deny benefits to an employee terminated because they did not qualify for religious or disability accommodations offered by their employer and did not comply with the vaccine mandate. This is consistent with ESD’s standard eligibility criteria, which disqualify employees terminated for misconduct such as deliberately violating company health and safety policies.

At the same time, ESD explains that it will “evaluate each case on its own merit” and that “some individuals may still qualify based on their own unique circumstances.” Relevant factors may include:

• When the employer adopted the requirement;
• Whether the employee is otherwise eligible for benefits;
• The specific terms of the vaccine policy including allowable exemptions; and
• The reason why the employee did not comply with the vaccine requirement.

How willing ESD will be to grant exceptions based on the employee’s “unique circumstances” is unclear and creates a degree of uncertainty for employers and employees alike. Employers adopting a mandatory vaccine policy and looking to minimize the risk of successful unemployment claims should consider the above factors and adjust their policies accordingly. This might include, for example, ensuring that employees have plenty of time between when the policy is announced and the date on which employees are required to be fully vaccinated, or allowing employees paid time off work to get vaccinated.