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Jobless Benefits for Vaccine-Related Dismissal Not Guaranteed

As Washington state’s vaccine mandate began this week, officials warned workers who quit or are fired over the governor’s vaccine mandate shouldn’t expect to receive unemployment aid. But there are many exceptions.

(TNS) — As the vaccination deadline for thousands of workers in Washington state arrived Monday, officials warned that those who quit or get fired over Gov. Jay Inslee's mandate for state government employees, health care workers and others shouldn't count on receiving jobless benefits.

That warning also applies to a separate federal vaccine mandate aimed at private employers with 100 or more employees, said officials with the state Department of Employment Security.

But those messages come with lots of caveats and gray areas, experts said. For instance, employees terminated after being approved for a vaccine exemption may be eligible to claim unemployment benefits.

"We are in new territory," said Timothy Emery, managing partner at Emery Reddy, a Seattle-based employment law firm. "It's untested."

Given the novelty of the vaccine mandates, the intricacies of employment law and the state's broad discretion in deciding eligibility, workers filing mandate-related unemployment claims have little certainty around the outcome, legal experts say.

Adding to the uncertainty: some labor groups have negotiated or are negotiating agreements with employers that could possibly help noncompliant workers avoid being "separated" in ways that hurt their eligibility for benefits.

Also untested is ESD's ability to review expeditiously a large number of contested jobless claims that might result from the mandates — although so far the agency has seen only a few mandate-related unemployment claims, according to spokesperson Nick Demerice.

Uncertainty over benefits looms as some workers push back against the mandates and employers fear that the ultimatums could worsen an already painful labor shortage.

On Friday, several hundred people, mostly Boeing employees, protested the company's new vaccine mandate, with some saying they would quit rather than submit to the jab.

Federal and state law gives employers considerable leeway in mandating workplace requirements. That authority has been bolstered by a recent opinion from the U.S. Department of Justice that allows employers to require vaccines that have been approved for emergency use by the Food and Drug Administration, as is the case for COVID-19 vaccines.

Unemployment benefits are typically approved more readily for workers who have been laid off than for those who quit voluntarily or were fired for cause.

But federal and state law also envision some scenarios where benefits might still be paid to workers who quit or are fired, legal experts say. Under both state and federal vaccine mandates, for example, employers must try to accommodate workers who request exemptions for religious or health reasons or who object to the vaccine on moral grounds.

In cases where employees requested an exemption but employers were unable to grant it, resulting in a separation, the employee may still be eligible for benefits, said ESD spokesperson Nick Demerice.

For example, if a fire department accepted a firefighter's request for a religious exemption but was unable to find a role for the firefighter that didn't involve interaction with the public, and therefore decided to terminate the employee, "that may be a circumstance where someone could qualify for benefits," said Demerice.

Simply requesting an exemption, however, won't guarantee benefits, ESD officials and legal experts said.

Claimants who object to the mandate on religious or medical grounds, for example, likely will need to document their objections, said Anne Paxton, policy director with the Seattle- and Spokane-based Unemployment Law Project, which represents people who are denied unemployment benefits.

"So, casually saying, 'Oh yeah, religious objection' is not going to fly without some kind of [evidence] showing that ... this is not just a whim," Paxton said. Claimants might be asked to show that they also objected to other vaccinations, Paxton said.

Employers themselves may look for ways to help vaccine-objecting employees retain their eligibility for unemployment benefits.

Ordinarily, employers often challenge unemployment claims by workers who quit or are fired, in part to avoid paying higher unemployment taxes.

But given the politically charged nature of the vaccination issue as well as many employers' struggles to retain workers, employers may be willing to classify a mandate-related separation as a layoff, which is nearly always eligible for benefits, instead of a termination or a voluntary quit.

Indeed, at least one local union was asking its employer to classify mandate-related separations as layoffs, thereby preserving eligibility for unemployment benefits, according to a local labor official who asked not to be identified because negotiations were ongoing.

"Eventually this pandemic is going to end, and [companies] are still going to have a problem finding good people, and they're not going to want to ruin those relationships by challenging the unemployment claims of unvaccinated employees," said Emery. "They want these people to come back."

(c)2021 The Seattle Times. Distributed by Tribune Content Agency, LLC.

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