Unvaccinated people are not only more at risk of getting infected with and dying from COVID, but they’re also beginning to face new restrictions. New York City recently announced it would be requiring proof of vaccination for restaurants, gyms, and theaters, and other major cities—like Los Angeles—are now considering doing the same. But that’s not the only policy that could affect the unvaccinated, lawyers are warning.
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From Facebook to Google, many major companies have started mandating that employees get vaccinated against COVID, which the U.S. Equal Employment Opportunity Commission (EEOC) says is perfectly legal. Some employees are refusing to comply, either quitting or getting terminated as a result. A viral Facebook post on Aug. 4 suggested that unvaccinated workers would be eligible for unemployment if they are fired (rather than quit) for refusing vaccination. But according to legal experts, that’s simply not the case.
“Workers who are fired because they refuse a vaccine are unlikely to be eligible” for unemployment, Charlotte Garden, an associate professor at Seattle University School of Law, told PolitiFact.
Joe Roby Jr., an attorney from Duluth, Minnesota, who specializes in employment and labor law at Johnson, Killen & Seiler, explained to ABC affiliate WDIO-DT that in order to qualify for unemployment, an employee has to lose their job through no fault of their own, like if a company downsized its staff. But if someone was terminated for refusing to follow a companywide policy that applied to all employees, Roby said it could be considered misconduct on the employee’s part, meaning they would not qualify for unemployment.
“Misconduct is defined in the unemployment statute as pretty serious wrongdoing. It’s not just carelessness, it’s not just negligence, it’s not just poor performance. It has to be pretty serious and it has to be intentional,” Roby said.
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According to Roby, some employers have been able to mandate certain vaccinations (like flu shots) and tests (like those for tuberculosis) in the past. “Healthcare providers, for decades have required employees get tested for TB to work at a hospital,” he explained. “So, let’s say you’ve already been hired, but then you refuse to get tested. You would probably lose your job.”
However, Roby says there are exceptions, like employees exempt for medical and religious reasons. If terminated for refusing the vaccine for one of those reasons, he says fired employees might still be eligible to receive unemployment. They would have to provide proof, like a note from their doctor, but religious exemptions may be harder to prove.
“I have yet to come across a valid religious objection to taking a vaccine,” Joshua Van Kampen, an employment attorney from Charlotte, North Carolina, told ABC affiliate WSOC-TV. “I think people are becoming surprised to know they don’t have a lot of legal options.”
Roby says unemployment cases will still likely be determined on a case-by-case basis, but Van Kampen says it may be hard to find anyone in the law field willing to sue an employer for a vaccine requirement.
“If you are going to go to court about this, you do have to be sympathetic and ask yourself, ‘Is a judge who’s lost a family member to COVID going to be sympathetic to you because you refuse to take a vaccine?'” Van Kampen noted.
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