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Oct. 18, 2021

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Inslee’s vaccine mandate draws fire from union, questions about unemployment benefits

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Gov. Jay Inslee’s rollout of a sweeping COVID-19 vaccine mandate is drawing fire from a major state employees union and leaving unanswered questions, including whether workers fired for noncompliance can collect unemployment benefits.

Inslee last week ordered state employees and health care workers to get vaccinated by Oct. 18 or face termination. On Wednesday, he expanded the requirement to include K-12 and higher education employees.

In imposing one of the nation’s strictest and most far-reaching mandates, Inslee said the state would bargain in good faith over the requirements with unions representing affected state employees.

But the 45,000-member Washington Federation of State Employees (WFSE) is accusing the Inslee administration of breaking that commitment — and failing to provide needed details about how the mandate will affect the state workforce.

“To put it very bluntly, I feel like we launched a plane into the air before we figured out whether there’s a pilot on board,” said Mike Yestramski, WFSE’s president. He said state negotiators dismissed all of the union’s proposals at a bargaining session this week and failed to shed any light on key questions about the rollout.

While Yestramski declined to list the union’s specific requests, he said concerns include protections for people in need of legitimate religious and medical exemptions and backup plans for staffing if large numbers of employees quit or get fired.

“They have no answers. No plan,” Yestramski said, noting that some state agencies already face staffing shortages. WFSE sent an alert to its members Wednesday urging them to contact Inslee’s office and demand that his administration “bargain in good faith.”

Inslee spokesperson Tara Lee disputed the union’s account.

“To say that we do not have a plan is a mischaracterization of the situation. Agencies are working as quickly as possible to verify fully vaccinated employees. Meanwhile, we are putting in place guidance and processes for agencies to work with employees who plan to seek medical and religious accommodation requests,” Lee said in an emailed statement.

“During conversations this week, the state reviewed and carefully considered a number of proposals made by WFSE. While we were unable at this time to reach agreement on the union’s proposals, we look forward to a continued dialogue,” Lee added.

Yestramski said WFSE’s members hold an array of views on vaccination policies, but emphasized the union is “on the side of public health and public safety.” He said public employees deserve consideration for working to maintain government services amid the COVID-19 pandemic.

Meanwhile, the full impact of Inslee’s orders remain murky, with legal experts warning the intricacies of unemployment law could lead to a backlog at state agencies as workers terminated due to the mandate seek unemployment benefits.

“I think we’re going to see a second wave of people seeking unemployment assistance, either because they’ve been terminated or they’ve resigned as a result of the [vaccine] mandate,” said Jason Rittereiser, an attorney and expert in COVID-19-related workplace regulations at HKM Employment Attorneys in Seattle. “And how that’s going to play out, I think, is a very open question at the moment.”

Unemployment claims filed by workers who defy the vaccine mandate will be decided on a case-by-case basis, said Clare DeLong, spokesperson for the state Employment Security Department (ESD) on Thursday.

But unless affected workers can demonstrate that employers didn’t follow guidelines on matters such as offering religious exemptions or giving employees enough time to get the vaccine, DeLong added, employees who “separate” over the mandate “shouldn’t be assuming that they’re going to get unemployment insurance.”

At least one key Democratic state lawmaker pushed back against the notion of denying benefits to workers who refuse vaccination as a job requirement.

State Sen. Karen Keiser, D-Des Moines, who chairs the Senate Labor, Commerce and Tribal Affairs Committee, said she thinks workers fired for refusing the vaccine should be eligible for benefits. “I think the unions will be asking the same,” she added.

Assuming Inslee doesn’t back down in the face of resistance from public sector unions, which have generally been tightly allied with the governor, the question of benefits will likely take some time to settle, experts said.

Federal law gives employers considerable leeway in mandating workplace behaviors — and a recent opinion by the U.S. Department of Justice empowers employers to require vaccines approved for emergency use by the Food and Drug Administration, as the COVID vaccines have, says Anne Paxton, policy director with the Seattle- and Spokane-based Unemployment Law Project, which represents denied claimants and is suing ESD over delays in payments.

Less clear-cut, however, is how ESD or the courts would treat workers who had requested exemptions for religious reasons or by employees who claim to have “a moral objection to what’s happening in the workplace,” Paxton said.

None of those questions would be settled anytime soon. ESD staff, who have often struggled under the wave of pandemic related claims over the last 17 months, could need extra time to review contested unemployment claims involving mandate-related separations.

Workers who claims were denied by ESD could file appeals with the Office of Administrative Hearings (OAH), which also faces a pandemic-related backlog of claims. As of Aug. 16, there were 33,077 open appeals at OAH, according to the agency website. The average contested claim took 27 days to get through ESD’s appeals review and an additional 140 days to be heard at OAH.

Once OAH rules on an appeal, that decision can also be appealed in state court, Rittereiser said.

“It’s not an exaggeration to say that the answer to these [vaccine-related legal] questions won’t be definitive for a year or multiple years,” Rittereiser said.

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