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Jan. 16, 2022

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So far, Washington workers pushed out over vaccine mandates aren’t losing jobless benefits

But number of flagged claims is expected to rise in coming weeks

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In August — when Gov. Jay Inslee ordered state employees, health care workers and others to get vaccinated against COVID-19 by Oct. 18 — officials issued a stern warning: If you quit or get fired for refusing a jab, don’t expect unemployment benefits.

But nearly two months after the vaccination deadline, it’s unclear just how much vaccine-hesitant workers have to worry about.

Although thousands of workers in Washington likely have quit or been fired over government and private vaccine mandates — including nearly 2,000 state employees as of Nov. 15, according to state data — just 26 mandate-related claims for jobless benefits had been flagged for review by the state Employment Security Department as of Friday. Although the review process isn’t complete, Employment Security Department officials don’t believe that any of those claims have been denied.

The number of flagged claims is expected to rise in coming weeks as the Employment Security Department’s backlogged review process catches up with mandate-related claims, said ESD spokesperson Nick Demerice. And, he added, “there will be many circumstances where if you leave your employer based on this requirement, you will not qualify for benefits.”

Some legal experts aren’t so sure. They think the Employment Security Department ultimately may deny benefits only to a relatively small number of workers who quit or are fired over the mandate — in part due to broader uncertainty around rules granting religious and medical exemptions for the vaccine-hesitant.

“Employers and agencies, including ESD, really don’t want to wade into the complication of ‘What is a sincerely held religious belief?’ or ‘What is a medical issue?'” said Timothy Emery, managing partner at Emery Reddy, a Seattle-based employment law firm.

Both Emery and Jason Rittereiser, an attorney and expert in COVID-related workplace regulations at HKM Employment Attorneys in Seattle, say they have yet to hear of a worker denied benefits over the mandate, despite receiving many inquiries from workers about vaccine mandates.

“What I’ve seen is that ESD is not challenging unemployment (benefits) in this context at all,” Emery said.

Uncertainties around vaccine mandates and jobless benefits have been rising since Inslee issued his vaccination orders in August.

Soon after, amid political uproar over the mandate, an Employment Security Department spokesperson warned that while the mandate included medical and religious exemptions, employees who “separate” over the mandate “shouldn’t be assuming that they’re going to get unemployment insurance.” That message was largely affirmed by the Employment Security Department on Oct. 18, as the state deadline passed.

(A much broader federal vaccine mandate for workers at firms with more than 100 employees was scheduled to go into effect Jan. 4 but has been suspended pending court challenges.)

But from the start, state officials also acknowledged that the benefits question was too nuanced for a single, blanket policy and would require case-by-case review.

Federal and state law gives employers considerable authority to mandate workplace requirements — and to fire workers for not complying — as long as employers also try to accommodate legitimate religious objections or medical concerns.

In theory, that means that quitting or being fired over the vaccine mandates could rule out unemployment benefits, the bulk of which are paid to workers who are laid off.

But unemployment regulations have always allowed potential exceptions — for example, when a worker is fired for anything other than misconduct or a worker leaves a verifiably hostile workplace.

COVID-19 has only added more scenarios where workers who quit or were fired might still be eligible for benefits. A construction company, for example, might grant a religious exemption to a vaccine-opposed worker, but still need to let that employee go because all its worksites require vaccinations.

“We’ve seen many circumstances in which employers have granted an exception or an exemption and then conducted the second-tier analysis that says, ‘but we can’t accommodate you, and therefore, we’re still terminating you,'” Rittereiser said.

In such a case, the worker still could be eligible for jobless benefits, Demerice said. Of the 1,956 state employees who had quit or were terminated over the mandate as of Nov. 15, “a good portion of those were folks that were granted an exemption but (were) unable to be accommodated,” Demerice said. “In that situation, you actually likely would receive benefits.”

But vaccine-skeptical workers might retain their benefits eligibility for other reasons — including because their employers are trying to avoid employee lawsuits related to the mandate, legal experts say.

For example, employers might reclassify a termination as a layoff, which is technically covered by unemployment insurance. Or employers might not exercise their right to challenge a terminated employee’s claim for unemployment benefits — challenges that often influence the Employment Security Department’s ultimate eligibility decision, legal experts say.

Employers hoping to avoid litigation don’t “want to back the worker into a corner,” Emery said. “If you set up a situation where your worker has no choice but to quit, and then you try to fight their unemployment benefits, you’re begging for a (court) fight.”

More broadly, many employers would rather avoid or defer tough decisions related to controversial policies, and to some degree that may also be the case even for government agencies such as the Employment Security Department, legal experts said.

The department “would prefer to not be dealing with … the nuance of whether or not someone should obtain benefits who’s separated for reasons related to a mandate,” Rittereiser said. “Employers and the Employment Security Department are looking for opportunities to interpret things in a way that avoids coming to a conclusion on the mandate generally.”

“Nobody really wants to test this in the courts,” Emery added.

Another factor that could reduce the number of denied claims: Some separated workers may not even bother filing for unemployment benefits, which now cover only about half of lost wages due to the expiration of enhanced federal benefits in September, and max out at $929 a week.

Still, Employment Security Department officials are sticking to their “Don’t count on benefits” message. The low number of claims flagged so far as mandate-related likely reflects the fact that most claims arising from quitting or being fired, regardless of reason, are automatically held for review, which can take six to eight weeks, Demerice said.

Given that the state mandate deadline was around seven weeks ago, the Employment Security Department expects to see an increase in flagged claims over the next two or three weeks, he said.

“Inevitably, some will be denied,” Demerice added. “So it would be irresponsible for us to be putting out a public message that would say you’re likely to get benefits, when there will be a great number of folks that won’t.”

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