Post Offers Misleading Advice on Mandatory Vaccines and Unemployment Benefits

SciCheck Digest

As some companies mandate COVID-19 vaccines for employees, a social media post misleadingly tells workers who don’t want the vaccine that they can collect unemployment benefits if they are fired. In most states, workers fired for violating company policy aimed at workplace safety are not entitled to unemployment benefits.

Some employers have required their employees to be vaccinated, or undergo regular testing, for COVID-19. The U.S. Equal Employment Opportunity Commission has said that employers aren’t prevented from having a mandatory vaccination policy for COVID-19 for employees who are physically in the workplace, as long as employers comply with federal laws stipulating that reasonable accommodations should be made for workers who cannot be immunized because of a disability or religious reason.

President Joe Biden also signed executive orders in September 2021 to require all federal workers and contractors who do business with the federal government to be vaccinated.

But the Supreme Court blocked a broader effort by the Biden administration to require all businesses with 100 or more employees to mandate that workers either be fully vaccinated or tested at least once a week.

In January 2022, the high court put the administration’s rule on hold while an appeals court considers its legality. In the ruling, the Supreme Court rejected the administration’s attempt to use the Occupational Safety and Health Act to issue an emergency rule requiring vaccination or testing. “Although Congress has indisputably given OSHA the power to regulate occupational dangers,” the court’s opinion reads, “it has not given that agency the power to regulate public health more broadly.”

However, the Supreme Court allowed an administration requirement that health care workers at facilities that receive Medicare and Medicaid funding be fully vaccinated, with exemptions for medical and religious reasons.

In that opinion, issued the same day as the OSHA ruling, the court agreed that the secretary of the Department of Health and Human Services had the authority to issue the requirement. In its ruling, the court said that “healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare” and that vaccination requirements for other diseases were common for health care workers nationwide.

States also can require individuals to be vaccinated.

As legal and public health expert Joanne Rosen of Johns Hopkins University has explained, the legal precedent for states to make vaccinations compulsory goes back to a 1905 Supreme Court case involving the smallpox vaccine. The court sided with the state, finding that the vaccination requirement was a reasonable regulation to protect public health.

The federal government cannot direct states to issue a vaccine mandate, but could provide financial incentives for states to do so.

“[T]he Supreme Court has interpreted the Tenth Amendment to prevent the federal government from commandeering or requiring state officers to carry out federal directives,” the Congressional Research Service explained in a 2019 report. “In the context of vaccination, this principle prevents Congress from requiring states or localities to pass mandatory vaccination laws, but it does not impede Congress from using its Spending Clause authority to provide incentives (in the form of federal grants) to states to enact laws concerning vaccination.”

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Major companies, health care operations and smaller businesses around the country are starting to require employees to get COVID-19 vaccines or be tested regularly to maintain a healthy workplace and stop the spread of the disease, which has claimed the lives of more than 615,000 Americans.

More than 166 million people, about half the nation’s population, had been fully vaccinated in the U.S. by Aug. 11, according to the Centers for Disease Control and Prevention.

Large firms adopting mandatory vaccine policies include Google, United Airlines and Tyson Foods. Giant retailers such as Walmart and Walgreens are requiring corporate employees to get their shots to return to the office, but have not extended the mandate to retail employees.

Against this backdrop, a Facebook post is offering misleading advice for those who don’t want the vaccine. “If your employer is mandating any pokes, DO NOT QUIT,” the post says. “Make them fire you. That way, you get unemployment benefits and can pursue legal action.”

But, for most employees, that’s bad advice.

Unemployment benefit laws vary from state to state. But in most states, employees fired for misconduct — particularly for violating company policy aimed at protecting workplace safety — are not entitled to collect unemployment, said Rebecca L. Baker, chair of the labor and employment practice group at the law firm Bracewell LLP.

“If you wait and let your employer terminate you for failing to get a vaccine in compliance of the policy, you are unlikely to be approved for unemployment benefits,” Baker, who is based at her firm’s Houston office, told us in a phone interview.

Yoora Pak, a partner in the employment and labor practice of the law firm Wilson Elser, in McLean, Virginia, told us in an email that a state “unemployment agency may also see an employee’s refusal to get vaccinated as a voluntary resignation (i.e., employer is willing to employ as long as you get vaccinated, but because you choose not to, you have voluntarily separated yourself), which may disqualify you from benefits.”

According to an article published by the U.S. Chamber of Commerce, “In general, unemployment benefits are available to those who were let go through no fault of their own.”

So far, at least seven states have adopted legislation that would prevent certain employers from imposing COVID-19 vaccination requirements, according to the non-partisan National Academy for State Health Policy.

Baker said Montana is the only state to impose a ban on private firms, while most of the others are directed at government entities and companies that do business with the state.

“That is not to say other states (a) haven’t tried and (b) won’t continue to try to apply it to private employers,” she said.

Jude Nwaokobia, an employment law attorney with Kalijarvi, Chuzi, Newman & Fitch in Washington, D.C., noted on the firm’s website that the U.S. Equal Opportunity Employment Commission ruled in May that a private firm can “mandate all its employees physically entering the workplace to be vaccinated for COVID-19.”

But, Nwaokobia wrote, “an employer is required to reasonably accommodate an employee who, because of a disability, pregnancy or a sincerely held religious belief, did not or cannot get vaccinated for COVID-19.”

Those accommodations could include allowing the unvaccinated employee to wear a face mask when entering the workplace, working at a social distance from others, working a modified schedule, being given the opportunity to telework or reassigning the employee to a different workplace or position, Nwaokobia also wrote.

Baker said she is seeing more and more businesses requiring employees who are not vaccinated to be tested for COVID-19 on an average of twice a week.

Pak said businesses need to be careful in enforcing vaccine mandates.

“Given that COVID is still relatively new in terms of the law, and since UI [Unemployment Insurance] benefit regulations vary state by state, an employer would need to individually assess why an employee has refused to vaccinate, if an employee has requested an exemption from a mandatory policy as a reasonable accommodation, and be consistent in how such accommodation requests are handled to avoid discrimination claims,” Pak said.

The Blank Rome law firm conducted a survey of 150 clients in July and found 16% of businesses are requiring employees to be vaccinated, while 14% are mandating it only for new hires.

A Morning Consult poll released July 28 found that 56% of adults said employers should probably or definitely require COVID-19 vaccinations for their employees and customers; 32% were opposed.

Editor’s note: SciCheck’s COVID-19/Vaccination Project is made possible by a grant from the Robert Wood Johnson Foundation. The foundation has no control over our editorial decisions, and the views expressed in our articles do not necessarily reflect the views of the foundation. The goal of the project is to increase exposure to accurate information about COVID-19 and vaccines, while decreasing the impact of misinformation.

Sources

Baker, Rebecca l. Chair of labor and employment practice group, Bracewell LLP. Phone interview with FactCheck.org. 10 Aug 2021.

Blank Rome COVID-19 Task Force. COVID-19 Employer Workplace Survey. Summer 2021.

Center for Disease Control and Prevention. COVID Data Tracker. Accessed 10 Aug 2021.

Center for Disease Control and Prevention. COVID-19 Vaccinations in the United States. Accessed 10 Aug 2021.

Galvin, Gaby. “As Delta Variant Adds Urgency to COVID-19 Vaccination Drive, About 3 in 5 Adults Back Vaccine Mandates.” Morning Consult. 28 Jul 2021.

Mendez, Andrews. “These companies are requiring employees get vaccinated.” Los Angeles Times. 7 Aug 2021.

National Academy for State Health Policy. “State Lawmakers Submit Bills to Ban COVID-19 Mandates and Passports.” 29 Jul 2021.

Nwaokobia, Jude. “Return to the Old Normal: Can My Employer Require Me to Get Vaccinated Before I Return to the Office? The EEOC Says Yes.” Kalijarvi, Chuzi, Newman & Fitch website. 14 Jun 2021.

Pak, Yoora. Partner in employment and labor practice, Wilson Elser. Email to FactCheck.org. 9 Aug 2021.

Peek, Sean. “Can Fired Employees Collect Unemployment?” U.S. Chamber of Commerce. 31 Jan 2020.

Towey, Robert and Leslie Josephs. “Covid vaccine mandates sweep across corporate America as delta variant spurs action.” CNBC. 9 Aug 2021.

U.S. Department of Labor. Services By Location. Accessed 9 Aug 2021.