August 6, 2021

Some people opposed to the COVID-19 vaccines say they have a workaround for dealing with businesses that require employees to get the shots.

“If your employer is mandating any pokes, do not quit,” said one user in an Aug. 4 Facebook post. “Make them fire you. That way you get unemployment benefits and can pursue legal action.”

This social media career advice is flawed, labor law experts told PolitiFact. The post, shared thousands of times, was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

“This post is incorrect,” said Charlotte Garden, an associate professor at Seattle University School of Law. “Workers who are fired because they refuse a vaccine are unlikely to be eligible.”

State guidelines for determining eligibility do vary, and workers’ applications may be handled case by case. But overall, the message from people trained in this kind of law was don’t count on it.

“In the absence of some special state legislation protecting workers from being discharged for refusing to be vaccinated, they can be discharged for such refusal without being eligible for unemployment compensation,” said Michael Harper, a law professor at Boston University.

Employers have latitude

Unemployment payments are provided to Americans who wind up out of a job through no fault of their own, such as when a business closes or downsizes.

Each state sets its own guidelines for determining eligibility, including for fired workers. But in many states, a person who was let go for misconduct can be denied benefits.

In Alabama, for example, a state with one of the lowest vaccination rates, a state handbook says unemployment payments can be delayed or disqualified for workers fired “for misconduct in connection with the work,” which can include “failure to obey an employer’s work rules and policies,” “endangering the safety of others” and “disregarding orders or instructions.”

Experts agreed that violating a policy requiring vaccinations against COVID-19 would likely disqualify a fired employee from getting benefits, unless the worker was exempted for medical or religious reasons covered by federal law.

“What counts as misconduct is defined differently in different states, and it is a relatively high bar in some places,” Garden said. “Still, I think most unemployment agencies and courts would agree that willfully violating a workplace safety rule — including a vaccination requirement — is sufficient misconduct to make a worker ineligible for unemployment insurance.”

Garden said she is not aware of any state that awards unemployment benefits to workers fired for significant misconduct. According to a recent report from WUSA9, a TV station in Washington, D.C., workers who get terminated for rejecting company vaccination policies would likely be denied unemployment benefits under the laws in Washington, Virginia and Maryland. TV stations in North Carolina and Michigan reported that workers there could expect the same.

The Justice Department’s Office of Legal Counsel advised in July that employers can mandate vaccines as a “condition of employment.” The legal opinion clarified that U.S. law “does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization” — an argument sometimes pushed by people opposed to vaccines.

federal judge in June threw out one lawsuit filed by employees at a Houston hospital system over a vaccine requirement.

“Employers generally have wide discretion to require safety measures,” said Catherine Fisk, a professor at the University of California, Berkeley School of Law. In some states like California, the law itself has vaccine requirements for certain workers, such as those in health care.

Some workers represented by a union and covered by a collective bargaining agreement might have more leverage, said Harper, the Boston University law professor. Even then, the union would have considerable power to decide how to handle a worker grievance over such a firing.

“Some unions are negotiating over this,” Fisk said. After Tyson Foods, a food corporation, announced a vaccine mandate recently, for example, a union leader said in a statement that the union will be meeting with the company to discuss the mandate and “ensure that the rights of these workers are protected.”

The Facebook post is also inaccurate as it pertains to people who quit their jobs, Garden said, since there are some specific scenarios in which a person could quit and be entitled to benefits. This could be the case if a worker quit because they were medically exempt from a company’s vaccine mandate but were not provided with a reasonable accommodation, Garden said.

Overall, people who rely on the post and follow its guidance “are going to receive a very unpleasant surprise when they are denied unemployment benefits,” Garden said.

Our ruling

A Facebook post said, “If your employer is mandating any pokes, do not quit. Make them fire you. That way you get unemployment benefits and can pursue legal action.”

Unemployment benefits are not guaranteed to people who get fired for refusing to comply with a company’s vaccine requirements. On the contrary, legal experts said that while state guidelines vary, it’s more likely that a worker in that situation would be denied such benefits for violating company policy.

We rate this post False.

This fact check was originally published by PolitiFact, which is part of the Poynter Institute. It is republished here with permission. See the sources for this fact check here and more of PolitiFact’s fact checks here.

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Bill McCarthy is a staff writer for PolitiFact and PunditFact. Previously, he worked as a reporter for PolitiFact North Carolina, and before that as an…
Bill McCarthy

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