Can you get unemployment if you lose your job for refusing to get vaccinated?

August 9, 2021, 4:00 PM UTC

An increasing number of major companies, health systems, and government agencies are incentivizing—and even mandating—employees get vaccinated against COVID-19. Most recently, United became the first airline on Friday to require all 67,000 of its employees to get vaccinated by Oct. 25 or risk losing their jobs.

But what happens to those who quit or are dismissed for refusing to get vaccinated? Are they eligible for unemployment benefits? 

The short answer is that while it’s complicated, in many cases these workers likely won’t be eligible for unemployment benefits, also known as unemployment insurance benefits. 

“Unemployment insurance is generally available to individuals who lost work involuntarily, or who left for ‘good cause,’” said Brian Galle, a law professor at the Georgetown Law Center who has written about unemployment benefit issues throughout the pandemic. In most states, an employee has “good cause” to leave if they were discriminated against on the basis of religion, or if their workplace imposed unreasonable health risks. 

So if a worker quits because of a vaccine mandate, then they’d have to prove they had “good cause” to leave in order to collect unemployment insurance, said Rebecca Dixon, executive director of the National Employment Law Project. But given the overwhelming evidence of the safety of the vaccine, it’s likely that requiring a vaccine would not be deemed an unreasonable health risk and therefore wouldn’t qualify as “good cause,” Dixon said. 

Making that “good cause” argument more difficult is the fact that the Equal Employment Opportunity Commission issued guidance noting that federal antidiscrimination laws don’t prohibit employers from requiring “all employees who physically enter the workplace to be vaccinated for COVID-19.” 

For those who were fired or laid off for refusing to get vaccinated, workers seeking unemployment would likely be judged under a misconduct standard in most states, Dixon said. Typically, refusal to follow a known and reasonable company policy without a compelling reason is disqualifying misconduct. “The burden to prove misconduct is on the employer, but I believe most states would come down as disqualified,” Dixon said. 

Employees who refuse to be vaccinated based on genuine religious objections or medical reasons present a trickier case, Galle said. These employees may qualify for an accommodation, and if they’re then fired without any accommodation being made, they could have a better case for qualifying for unemployment benefits. “An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated,” John Lomax, an attorney with Snell & Wilmer in Phoenix, recently told the Society for Human Resource Management. 

But there is ongoing debate over whether there should be legal protections for individuals whose behavior poses risks to other workers, even if they claim a religious right to impose that risk.

In the end, the determination to award unemployment benefits in these cases will likely depend on the state (and possibly even the locality) in which the job dismissal occurs, said Gary Burtless, a senior fellow in economic studies at the Brookings Institution. Generally, workers should file for unemployment in the state where they worked.

The New York Department of Labor declined to comment on whether the agency had a standard policy for handling unemployment claims from unvaccinated workers, telling Fortune that “each claim is unique, and each claim is reviewed individually, and on a case-by-case basis.”

The Texas Workforce Commission tells Fortune that being vaccinated or lack thereof is not determinative in and of itself regarding work separation. “We will review the facts of each case, and in making a decision, will apply those facts to relevant law,” according to a spokesman for the agency. Unemployment offices for California and Florida did not immediately respond to requests for comment.

In many states, the jury is likely still out. “It’s probably the case that this question is so new in some states that no definitive determination has yet been made,” Burtless added.

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