Proposal Would Let Vaccine Refusers Get Unemployment

By Cassie Miller | Pennsylvania Capital-Star

Two Republican state lawmakers say they want to change state unemployment law to make sure that workers who are fired or forced to quit by their employers for refusing to get vaccinated against COVID-19 can still collect unemployment benefits.

State senators Doug Mastriano, R-Franklin, and Scott Hutchinson, R-Venango, began seeking co-sponsors for their proposal on Aug. 30, arguing in a “Dear Colleague” memo, that “the Legislature must take action to protect individuals who practice the basic human right of deciding what goes into their body. They should not be punished by the Commonwealth and deprived of benefits as they seek other employment.”

According to that memo, the bill will add a section to state law that reads: 

• Refusal to obtain COVID-19 vaccination shall NOT be considered “willful misconduct”
• A voluntary resignation due to an employer’s COVID-19 vaccination mandate shall be considered a cause of a “necessitous and compelling nature”

Define ‘reasonable’

According to Larry Weisberg, an employment attorney at Harrisburg-based Weisberg Cummings, P.C., “willful misconduct” is when an employer has a reasonable policy and an employee defies that policy. 

“That can be willful misconduct,” Weisberg told the Capital-Star. He added that an employee seeking unemployment benefits would need to have a compelling reason, such as a medical or religious exemption, for doing so in order to obtain benefits. 

As for the definition of “reasonable,” Weisberg says that can vary. 

“The general consensus is that public health reasons would likely be a reasonable policy,” Weisberg said, adding that if an employee works a job where they are expected to regularly interact with the public, requiring vaccination for employment would likely be deemed “reasonable” versus if the workers performed their duties remotely. 

“That might be a policy that goes too far,” Weisberg said. 

However, companies that contract with the federal government may have to adhere to federal vaccine mandates. In that case, Weisberg believes that mandates would also be deemed a reasonable policy from the employer. 

Qualifying for Benefits

In the absence of a Pennsylvania court decision on the matter, Weisberg confirmed that employees fired for “willful misconduct” cannot currently receive unemployment in Pennsylvania.

But the state Department of Labor & Industry says there was never a “one-size-fits-all answer” to whether or not those who refused a mandated vaccine qualified for unemployment benefits. 

“Each case must be adjudicated on its individual merits, there is no general-purpose, or ‘one size fits all’ answer that can be provided to resolve the question of whether or not an individual who separates from employment due to the individual’s refusal to receive a vaccination will be found to be qualified to obtain UC benefits,” Sarah DeSantis, a spokesperson for the agency said.

DeSantis said that the department uses a combination of the individual circumstances, state law, and judicial precedent to determine someone’s eligibility for unemployment benefits. 

“Each unemployment insurance claim is unique and involves its own distinctive set of facts and circumstances that must be reviewed in order to make a determination with respect to what led to a claimant’s separation from employment,” DeSantis told the Capital-Star in an email. ”Upon making such a determination, L&I must then apply governing state law, regulations, and any applicable judicial precedent to the relevant facts to reach a conclusion regarding the individual’s legal qualification to receive benefits.”

Right to Refuse?

In Pennsylvania, some health care organizations, including Penn Medicine, are requiring workers to be vaccinated against COVID-19.  

“As an institution grounded in the science and art of healthcare, we believe it is imperative for Penn Medicine to take the lead in requiring employee vaccinations to protect our patients and staff and to set an example to the broader community as we work together to end the COVID-19 pandemic,” University of Pennsylvania Health System CEO Kevin B. Mahoney said in a statement earlier this year.

Following Penn Medicine’s decision, state Rep. Russ Diamond, R-Lebanon, made his opposition clear, signing on as the prime sponsor of HB 262, or the “Right to Refuse Act.”

The bill is described as “providing for the right of an employee or prospective employee to refuse to participate in an invasive medical test or vaccination INJECTION required by an employer.” 

The bill was recommitted with amendment in June, but has not seen due to the House adjourning for summer recess. 

In both cases, the lack of relevant case law, Weisberg says, leaves a lot of room for interpretation. 

“There’s a lot here that I think might still need to be vetted out,” Weisberg said. “All we can do right now is sit and conjecture on how similar things might have played out.”

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